Ques1. Explain the general provisions relating to appeals under the Code of Civil Procedure, 1908.

Discuss the essential conditions for filing an appeal?( 1 st appeal)

Ans.
INTRODUCTION
An appeal is a legal remedy that allows an aggrieved party to challenge the decision of a subordinate
court before a superior court to examine its validity. It is not an inherent right but is granted by statute.
The appellate process ensures the correction of judicial errors and promotes justice. Part VII of the Code
of Civil Procedure, 1908, provides provisions for appeals from original decrees, detailing the procedure,
conditions, and limitations under which an appeal may be filed, thereby ensuring a fair review mechanism
within the judicial system.
Meaning of Appeal
An appeal is not specifically defined under the Code of Civil Procedure (CPC) but refers to the judicial
examination of an inferior court’s order by a superior court to determine its correctness. The party filing
the appeal is known as the appellant, while the court hearing the appeal is the appellate court. A person
aggrieved by a decree or order may appeal to a higher court if such an appeal is permitted. Generally, a
first appeal lies with the appellate court authorized to hear appeals from the original jurisdiction court
that issued the decree. However, exceptions may exist if explicitly provided by the CPC or other applicable
laws. The right to appeal is conferred by Sections 96, 100, 104, and 109 of the CPC.
Essentials of Appeals
An appeal under CPC is a legal process in which a higher forum reviews the decision of a lower forum on
both legal and factual grounds. The higher forum has the jurisdiction to either uphold, reverse, modify the
decision, or send the case back to the lower forum for a fresh decision, following the directions given by
the higher forum. The three essential elements of appealing cases can be summarised as follows:
 A decree issued by a judicial or administrative authority.
 An aggrieved individual who may not have been a party to the original proceeding.
 A reviewing body was established specifically to handle such appeals in CPC.

Who Can File an Appeal?

The right to appeal in CPC is available to specific categories of individuals:
 Legal representatives of the original parties or the original parties themselves.
 Legal guardian of the minor appointed by the court.
 Any aggrieved person after taking leave of the court.
 The general rule is that only a party to a suit who has been adversely affected by the decree or their
representatives can file an appeal in CPC. However, with the Court’s leave, a person not originally
involved in the case may also appeal if they are bound by the decree, aggrieved by it, or maliciously
influenced by it. To determine if a party is aggrieved, it must be shown that the judgment has unjustly
affected their rights, whether financially or otherwise. A judgment cannot be said to adversely impact a
party unless it acts as res judicata against them in future litigation. The content of the judgment and
decree, rather than the form, should be evaluated to determine if it will have this effect.
 Who Cannot File an Appeal in CPC?
To summarise the situations in which parties may not have the right to appeal:
 A party that has explicitly and unambiguously given up its right to appeal as per an arrangement or
agreement.
 A party that has received benefits from a decree and has implicitly accepted its terms.
 A consent decree binds parties, as they have willingly agreed to its terms.
 Parties whose evidence or compromises were not presented or expressed during the dispute.
 Parties involved in trivial instances where the matter is not significant enough to warrant an appeal in
CPC.
Furthermore, legal representatives are not allowed to file an appeal under CPC on behalf of a deceased
individual. Once a party passes away, their right to appeal also ceases to exist.

Right to Appeal
The right to appeal is both statutory and substantive. It is a statutory right because it must be specifically
granted by a statute and establishes the appellate machinery. Unlike the inherent right to institute a
lawsuit, the right to appeal is provided by law. Additionally, the right to appeal is substantive, meaning
that it must be exercised prospectively unless the statute states otherwise.
However, parties may waive this right through an agreement, and accepting benefits under a decree may
stop a party from challenging its validity. It’s important to note that the right to appeal is determined
based on the law as it exists at the time of the original suit.

Characteristics of An Appeal
The right to appeal is not automatically assumed and must be explicitly provided for in the statute. It
differs from the rights associated with filing cases, as it is a substantive right rather than a procedural one.
These rights arise from the moment the suit is instituted. Once granted, these privileges cannot be
invalidated unless a statute expressly or implicitly allows for such invalidation. The appellate authority has
the final and conclusive discretion in matters related to appeals.

Appeal From Original Decree (Section 96)

Section 96 of the Code recognizes the right of appeal from the decree passed by the court exercising
original jurisdiction but under the following conditions:

1. The subject-matter of the appeal must be a "decree", meaning a conclusive determination of the rights of
the parties regarding all or any matters in controversy in the suit.
2. The party appealing must have been adversely affected by such determination.
 Section 96(2) states that in an appeal against an ex parte decree, the appellant can only be heard on
the merits of the case. The appellate court cannot examine why the appellant failed to appear before
the trial court.
Section 96(3) declares that no appeal shall lie against a consent decree. A party who consents to a decree
is estopped from later challenging it on grounds of fraud, misrepresentation, coercion, or undue
influence.
Section 96(4) (inserted by the Amendment Act of 1999) states that no appeal shall lie from decrees
passed in petty suits by the Small Cause Court, where the subject-matter does not exceed ₹10,000.

Appeal From Final Decree Where No Appeal From Preliminary Decree (Section 97): Under Section 97, if
an aggrieved party fails to appeal against a preliminary decree, they cannot challenge its correctness or
object to it in an appeal against the final decree. This provision ensures that a preliminary decree is
considered final unless appealed at the right stage.
Decision Where Appeal Heard By Two Or More Judges (Section 98): Section 98 states that when an
appeal is heard by two or more judges, it must be decided based on their consensus or majority opinion.
If two judges differ on a point of law, they may refer the issue to a third judge or additional judges. The
decision shall then be based on the majority opinion of all judges who have heard the appeal.
Section 99 states that a case cannot be remanded in appeal nor a decree reversed or varied due to:
 Misjoinder of parties
 Non-joinder of parties, except the non-joinder of a necessary party
 Causes of action
 Any error, defect, or irregularity in proceedings that does not affect the merits of the case or the
jurisdiction of the court

Section 99-A states that no order under Section 47 shall be reversed or varied due to an error, defect, or
irregularity in proceedings unless it has prejudicially affected the case's decision.

PROCEDURE FOR FILING AN APPEAL FROM ORIGINAL DECREE

The Procedure for filing an appeal from original decree is covered under Order XLI and rules as
1. Rule 1 states Form of appeal What to accompany memorandum as: Every appeal must be filed in the form
of a memorandum, duly signed by the appellant or their pleader, and submitted to the court or an
authorized officer. The memorandum must be accompanied by a copy of the judgment. However, if
multiple suits have been tried together and a common judgment has been delivered, resulting in multiple
appeals against decrees covered by that judgment—whether by the same appellant or different
appellants—the appellate court may allow the filing of a single copy of the judgment instead of multiple
copies.

2. Rule 1 Contents of Memorandum. — The memorandum of appeal must clearly state the grounds of
objection under distinct heads, without argument or narrative, and be numbered consecutively. If the
 appeal is against a money decree, the appellant must deposit the disputed amount or provide security
within the time allowed by the appellate court.
.
3. Rule 2 states Grounds which may be taken in appeal: Under Rule 2, an appellant cannot raise any ground
of objection not mentioned in the memorandum of appeal without the court’s permission. However, the
appellate court is not restricted to these grounds when deciding the appeal. Nevertheless, the court
cannot base its decision on a new ground unless the affected party has been given a fair opportunity to
contest it.

4. Rule 3 states Rejection or amendment of memorandum: Under Rule 3, if a memorandum of appeal is not
properly drafted, the court may reject it, return it for amendment within a specified time, or allow
immediate correction. If rejected, the court must record the reasons. When amended, the judge or an
authorized officer must sign or initial the changes.

5. Rule 3A states Application for condonation of delay: Under Rule 3A, if an appeal is filed after the
limitation period, it must be accompanied by an affidavit explaining the delay. If the court does not reject
the application outright, it will issue a notice to the respondent and decide the matter before proceeding
with the appeal. Until the court decides to hear the appeal under Rule 11, it cannot stay the execution of
the decree.

6. Rule 4 states One of several plaintiffs or defendants may obtain reversal of whole decree where it
proceeds on ground common to all: When a suit involves multiple plaintiffs or defendants, and the decree
is based on a common ground applicable to all, any one of them may file an appeal against the entire
decree. In such cases, the appellate court has the authority to reverse or modify the decree in favor of all
plaintiffs or defendants, as applicable.

7. Stay of Proceedings : Rules 5 to 8 provide for a stay of execution during an appeal. Under Rule 5, the
appellate court may stay the enforcement of a decree, but filing an appeal does not automatically
suspend its execution. The stay protects both parties’ interests and is granted only if the application is
filed without delay, the appellant proves potential harm, and adequate security is provided. If these
conditions are met, the court may also issue an ex parte stay order to protect the appellant’s interests
pending appeal.

8. Summary Dismissal : Rule 11 empowers the trial court to summarily dismiss an appeal if it lacks merit,
after reviewing the appellant’s memorandum and hearing their counsel. However, this discretionary
power must be exercised judiciously and not arbitrarily. Summary dismissal should be rare and used only
in exceptional cases to prevent frivolous appeals from causing delays. While this rule ensures judicial
efficiency, courts must be cautious not to dismiss legitimate appeals that warrant a full hearing for proper
adjudication.
9. Doctrine of Merger :The concept of the merger theory is rooted in the principle that there should not be
multiple operative decrees governing the same subject matter simultaneously. As a result, when an
appeal is adjudicated by an appellate court, the decree of the trial court no longer remains effective
under the provisions of the statute. Instead, it is replaced by the decree passed by the appellate Court,
and the decree of the trial court effectively combines or “merges” with the decree of the appellate Court.

10. Cross Objections: Order 41 Rule 22 allows a respondent, who has not filed an appeal, to raise objections
through cross-objections in response to an appeal by the opposing party. Filing cross-objections is
discretionary, not mandatory. Unlike cross-appeals, which involve an independent appeal by the
respondent, cross-objections can only be filed if the appellate court accepts the appeal and issues notice
to the respondent. If no appeal is filed or accepted, the respondent cannot raise objections through cross-
objections.

CASES OF APPEAL FROM ORIGINAL DECREE

1. Wada Arun Asbestos (P) Ltd. v. Gujarat water Supply and Sewerage Board (2009): The Supreme Court in
this case held that where a decree is appealed from, any error, defect or irregularity in any order affecting
decision of case may be set forth as a ground of objection in memorandum of appeal.
2. Baldev Singh v. Surinder Mohan Sharma (2003): The Supreme court stated that there is no dispute that as
against a decree, an appeal would be maintainable in terms of Section 96 of the Code of Civil
Procedure. Such an appeal, however, would be maintainable only at the instance of a person aggrieved by
and dissatisfied with the judgment and decree.
3. State of Maharashtra v. Hindustan Construction Company Ltd. (2010): The Supreme Court held that the
appellant court has power to grant leave to amend the memorandum of appeal.

CONCLUSION
Appeal is a remedy given to the person aggrieved by the subordinate courts' decision. It is a substantive
and statutory right available as per the laws of the statute. Appeal from an original decree lies to the
court higher to the court which has passed the decree. Appeal is generally preferred by judgement
debtors.
Question. Distinguish between First Appeal and Second Appeal under the CPC. What are the
conditions for filing a Second Appeal under Section 100 CPC?

Second Appeal

Provision has been made for second appeal under Sections 100 to 103 and Order 42 of the
Code.

1. Conditions for Second Appeal (Section 100)

A second appeal can be filed against a decision made in the first appeal only under the
following conditions:

 When any substantial question of law is involved.

 When an ex parte decree has been passed in the first appeal.

Thus, a second appeal can only be heard on a substantial question of law and not otherwise
(Monika Pusali Vs Anjali Amma, A.I.R. 2005 SC 1777).

A second appeal cannot be made on findings of fact (Kalidas Vs Ram Singh, A.I.R. 2995,
NOC 103, Himachal Pradesh).

In Govind Raju Vs Mariyamman (A.I.R. 2005, SC 1008), the Supreme Court held that a
question of law is considered "substantial" when:

 It is debatable.
 It has not been decided earlier by the law of the land.
 It affects the material rights of the parties.

2. Second Appeal on No Other Grounds (Section 101)

Section 101 states that no second appeal shall lie except on the grounds mentioned in Section
100.

The grounds for filing a second appeal include:

1. The appeal must involve a substantial question of law, which may be either:
o Presented by the party in a memorandum of appeal, or
o Formulated by the court itself.
2. A second appeal can be filed when a decree was passed ex parte.
In Sir Chunilal V. Mehta And Sons Ltd. vs The Century Spinning And Manufacturing Co.
Ltd., the Court held that a question of law must be of general public importance or must
directly and substantially affect the rights of the parties.

3. No Second Appeal in Certain Cases (Section 102)

Section 102 restricts the scope of second appeals in cases where the subject matter of the
original suit is valued at ₹3,000 or less.

Section 102 states:

"No second appeal shall lie in any suit of the nature cognizable by Courts of Small Causes when
the amount or value of the subject matter of the original suit does not exceed ₹3,000."

4. Question of Fact in Second Appeal (Section 103)

The general rule is that the High Court shall only entertain second appeals involving a
substantial question of law. However, Section 103 provides an exception, allowing the High
Court to decide on questions of fact under specific conditions.

Power of High Court to Determine Issues of Fact (Section 103)

In any second appeal, the High Court may determine an issue necessary for disposal if:

1. The issue was not determined by the Lower Appellate Court or by both the Trial Court and the
Lower Appellate Court.
2. The issue was wrongly determined by the courts based on a misinterpretation of the
substantial question of law under Section 100.

In Jadu Gopal Chakravarty v. Pannalal Bhowmick & Ors, the Court considered whether a
compromise decree was obtained by fraud. Though fraud is typically a question of fact, since
neither of the lower courts dealt with it, the High Court exercised its power under Section 103
to examine the issue.

The Supreme Court has explained the concept of Second Appeal in clear terms. It stated that the
First Appellate Court is the final court on questions of fact, and the exclusive jurisdiction of
the High Court to entertain a regular second appeal is provided under Section 100 of the
CPC, which permits the High Court to consider a Second Appeal only when a substantial
question of law is involved. Such substantial question(s) of law must be explicitly framed and
answered. It is a mandatory requirement that at the time of admitting the Second Appeal, the
substantial question(s) of law must be formulated, which will serve as the basis for arguments
and the final decision. However, the High Court has the liberty to reframe or frame fresh
substantial questions of law after hearing arguments. Additionally, in the case of Raghavendra
Swamy Mutt v. Utaradi Mutt (2016), the Supreme Court clarified that if the High Court does
not find a substantial question of law at the time of admission, it is obliged to formulate one
before proceeding with the Second Appeal.
Definition and Concept of Substantial Question of Law

A question of law arises when there is ambiguity or uncertainty regarding the interpretation or
application of legal provisions. However, not every question of law qualifies as
a substantial one. A question of law is deemed substantial when it:

1. Directly and substantially affects the rights of parties.

2. Is debatable, open to interpretation, or lacks a definitive ruling.
3. Has not been settled by a higher court, such as the Supreme Court.
4. Involves legal complexities requiring judicial consideration.
5. Has significant public importance beyond the immediate case.

The Delhi High Court has observed that while the term “substantial question of law” is not
explicitly defined in statutes, it has been shaped by numerous judicial pronouncements over time.

Landmark Cases Defining Substantial Question of Law

Supreme Court’s Perspective

In M/s Neek Ram Sharma & Co. vs Income Tax Appellate Tribunal & Others, the Supreme
Court ruled that mere application of settled legal principles to facts does not create a substantial
question of law. The Court emphasised that for a question to be considered substantial, there
must be room for doubt, debate, or difference of opinion.

The Supreme Court in Sir Chunilal V. Mehta & Sons Ltd. v. Century Spinning &
Manufacturing Co. Ltd. laid down key criteria to determine whether a substantial question of
law is involved:

1. Does it directly or indirectly affect the substantial rights of the parties?

2. Is the question of general public importance?
3. Has it been conclusively settled by the Supreme Court or other apex courts?
4. Is the issue legally complex and not free from difficulty?
5. Does it call for discussion of alternative interpretations?

If the answer to any of the above is affirmative, a substantial question of law exists.

Hero Vinoth v. Seshammal (2006)

The Supreme Court reaffirmed that a question of law is substantial when:

 It materially impacts the rights of the parties.

 It is not covered by a statutory provision or established precedent.
 It involves a debatable legal issue.
 The existing legal position is unclear due to absence of express law or conflicting
precedents.

Thus, a mere misinterpretation of evidence or facts does not qualify as a substantial question
of law.
Application of Substantial Question of Law Under Appeal in Section 100 CPC

Mandatory Requirement

Under Section 100 of the CPC, a High Court must formulate a substantial question of law
before admitting a second appeal. Courts cannot interfere with factual findings of lower courts
unless a substantial legal question is involved.

In Ishwar Dass Jain v. Sohan Lal, the Supreme Court categorically stated that without
the formulation of a substantial question of law, a second appeal cannot be entertained.
Similarly, in Roop Singh v. Ram Singh, the Supreme Court reiterated that the jurisdiction of
the High Court is confined to cases involving substantial questions of law.

Supreme Court’s Clarification in Commissioner of Income Tax v. P. Mohanakala

The Supreme Court ruled that a party cannot introduce a substantial question of law at the
appellate stage if:

 It was not raised in the lower courts.

 The dispute purely concerns facts and not legal principles.

Furthermore, in Kondiba Dagadu Kadam v. Savitribai Sopangujar & Ors, the Court held that
the mere appreciation of documentary evidence or interpretation of documents does not
constitute a substantial question of law.

Instances Where High Courts Can Decline to Answer a Legal Question

The Supreme Court in CIT v. Anusuya Devi held that the High Court may refuse to answer a
question of law if:

 It is purely academic and has no impact on actual rights/liabilities.

 It does not help in resolving the real dispute.
 It is irrelevant or unnecessary.

Factual Findings and Judicial Intervention

While factual findings are typically not subject to second appeal, the Delhi High Court,
citing Lord Simonds, clarified that courts may intervene in exceptional cases where:

1. The lower court’s decision is based on no evidence.

2. The factual findings are unreasonable or perverse.
3. No reasonable judicial authority could have arrived at the same conclusion.

Conclusion

1. A second appeal can only be entertained if it involves a substantial question of law.

This ensures that only significant legal issues reach higher courts, preventing unnecessary
litigation.
 2. A substantial question of law must involve legal uncertainty, be of public
importance, or directly impact the rights of parties.
3. Mere application of well-settled legal principles does not constitute a substantial
question of law.
4. High Courts cannot interfere with factual determinations unless a substantial legal
question is involved.
5. Judicial precedents, including those from the Supreme Court, provide a structured
framework for determining substantial questions of law.
6. If a legal question is purely academic, irrelevant, or does not influence the actual
rights of parties, courts may refuse to entertain it.

The doctrine of substantial question of law serves as a crucial filter in appellate jurisprudence,
ensuring that second appeals are reserved for cases involving genuine legal complexities rather
than mere factual disputes. Courts have consistently emphasised the need for a strict
interpretation of what constitutes a substantial question of law to prevent misuse of appellate
provisions and uphold judicial efficiency.

Thus, for any litigant seeking relief through a second appeal, it is imperative to carefully
examine whether their case genuinely involves a substantial question of law, rather than a
mere factual disagreement or misinterpretation of evidence.

Sr. no. First appeal Second appeal

Sections 96 to 99-A, Section 100 to 103 and
107 and Order 41 deal Order 42 deal with Second
1. with First appeal, Appeal,
A first appeal lies against a
decree passed by a court A second appeal lies against
exercising original a decree passed by a first
2. jurisdiction, appellate court,
The first appeal can be
admitted on the grounds
of question of fact, and The second appeal can only
question of law, or on a be admitted only on the
mixed question of fact and point of ‘substantial
3. law, question of law’.
The first appeal can be
entertained by
a subordinate The second appeal can only
Court which may or may be entertained by the High
4. not be a High Court, Court,
5. The Memorandum of first It needs not set out the
appeal must set out the grounds of objections to the
grounds of objections to decree appealed from.
the decree appealed from.
Question. Determine the powers of Appellate Court.

Ans. POWERS OF APPELLATE COURT

Under Civil Procedure Code, 1908, the provisions which enumerate the powers of an appellate court
while hearing first appeals. Sections 96-108 and Rules 23 to 33 of Order 41 of the Code conferred these
powers. They may be giving a brief statement thus:
1. POWER TO DECIDE A CASE FINALLY
Section 107(1) (a) and Rule 24 of Order 41 facilitate the appellate court to set out of a case finally. Where
the proof on record is adequate to enable the appellate court to pronounce judgment, it may finally
conclude the case despite that the judgment of the trial court has proceeded completely upon a ground
other than with the intention of on which the appellate court proceeds.
2. POWER TO REMAND
Section 107 (1) (b), Rules 23-23A of the Code concerns about the power to remand, here remand means
to send back. Rule 23 of Order 41 of the Code Confers that if the court of the trial has a case on a
preliminary point without documenting findings on other issues and the court of appeal reverses the
decision thus passed, it may refer the case back to the court of the trial to decide on additional matters
and to conclude the case. This is called a remand.
There have to be precedent conditions to be followed to be able to allow such a remand. Initially, the trial
court must have disposed of the claim, which on a preliminary point means a lower court. Furthermore,
the decision under appeal must have been overturned and, lastly, some other justification must have
occurred which has broadened its scope under Rule XXIII, which states that the appeal court may revoke a
case even if the case has been disposed of by the lower court other than on a preliminary point and
where the preservation is deemed of utmost importance in acting in the interests of the court.
3. POWER TO ISSUES AND PASS ON THEM FOR TRIAL
Section 107(1)(c), Rules 25-26 concerns about this power. This is considered very necessary in cases
where abstinence has been exercised by the lower court in performing its functions of framing any issue
or attempting any matter or deciding some question of fact that is needed to be decided to dispose of the
suit on merit. In all these circumstances, the court of appeal has the authority to frame issues for the
lower court and may also fix a certain time limit whilst referring them for the trail. It is provided in section
107(1) (c) above.
4. POWER TO TAKE ADDITIONAL EVIDENCE
It is conferred under section 107(1)(d), Rules 27-29. It is an appellate court’s power to take further
evidence. Anything else, what we call it a general law is that such an appeal must be decided by the
appellate court on the testimony provided by the lower court parties. Nevertheless, this exemption as
provided for in Section 107(1) (d) has three requirements to be met by the parties presenting such
additional evidence in the court of appeal which is, first, that the person demanding such admission of
additional evidence should be able to demonstrate the reason evidence by admitting additional evidence.
Third, empirical information must be important to solving the problem.
In this case,1 section 107 is an exemption to the general principle and empowers the court to take
additional evidence or require such evidence to be taken subject to the circumstances laid down in Rule
27 of Order 41.
In Pramod Kumari v. Om Prakash, 2 where the lower court has refused to take certain evidence on the
ground of its late production, such rejection cannot be said to be unjustified and the appellate court
should not interfere with the discretion of the lower court and admit such evidence.

5. POWER TO MODIFY DECREE

Under the provision of the Code, Rule 33 of Order 41 entitles an appellate court to render whatever order
it thinks fit, not only as between the appellant and the respondent however also as connecting one
respondent and another respondent. An appellate court’s right to change a decision is very relevant. This
power is an authoritative but discretionary force. This is very clear that if the verdict is overturned in an
appellate, the appeal court passes the order on the same overturned verdict. The same rules and
procedures are dealt with in compliance with Rule XXXIII. The jurisprudential strategy behind this law is to
allow the appeal court to take the whole issue into its own hands and to administer complete justice.
In Mahant Dhangir v. Madan Mohan, 3 the court should not refuse to exercise discretion on mere
technicalities.
LIMITATIONS
The rule does not confer unrestricted right to reopen decrees which have become final merely because
the appellate court does not agree with the opinion of the trial court. Nor the appellate court will
interfere with the finding of fact. The discretionary power cannot be exercised to nullify the effect of the
abatement of appeal.
6. OTHER POWERS
Under section 107(2) of the Code enacts that over and above the aforementioned powers, an appellate
court has identical powers as an original court. This proviso is based on the general rule that an appeal is
a persistence of a suit and therefore, an appellate court can do, while the appeal is pending, what the
original court could have done while the suit is in the course of.
Thus, an appellate court is empowered to re-appreciate the evidence, to add, transpose or substitute the
parties, to permit to withdraw of proceedings, to return a plaint or memorandum of appeal for
presentation to the proper court.

DUTIES OF THE APPELLATE COURT

1. DUTY TO DECIDE APPEAL FINALLY
In dealing with the duty to eventually determine the appeal, it is very clear that because the court has
taken an appeal to be heard and determined, the court must give its decision based on such an appeal
and the important thing to make a judgment is to apply a judge’s judicial mind.
 2. DUTY NOT INTERFERE WITH DECREE FOR TECHNICAL ERRORS
The substance of section 99 provides that “a decision which is otherwise correct and based on facts
should not be disturbed for technical reasons, so it is the responsibility of the appeal court not to
intervene with a decision for technical mistakes, to avoid undermining the ends of justice and acting as a
way of litigation circuitry.”

3. DUTY TO REAPPRECIATE EVIDENCE

The appellate court ‘s obligation to re-appreciate facts ensures that when an appellate court hears an
appellate with almost the same powers as the original court, along with certain extra powers, Upon due
care and caution, the court may re-appreciate such evidence as it held in a case where a finding of fact
was reached by the court of The trial should not be slightly disturbed, primarily by appreciating oral
evidence, unless the approach of the trial court to the assessment of evidence is significantly incorrect,
contrary to well-established or perverse principles.
Three essentials should normally be present before an appellate court reserves a finding of fact recorded
by the trial court:4
 It applied its mind to reasons given by the trial court;
 It had no advantage of seeing and hearing the witnesses; and
 It records cogent and convincing reasons for disagreement with the trial court.

4. DUTY TO RECORD REASONS

One of the appellate court’s essential responsibilities is the obligation to record reasons. All other courts
of appeal other than a High Court have the obligation to document reasons for their decision, even if it is
appreciable to do so. Although Rule XXXI specifies that there must be explanations for an appeal court’s
decision and such decision, endorsed by reasons, the court’s conclusions must be eventually decided and
concluded.
Where the High Court (as Appellate Court) finds trial court judgment to be unsatisfactory and sets aside
the judgment, it ought to carefully examine facts and law and give cogent reasons for setting aside such
judgment.5
Thusly, all these earlier in this paper-mentioned points and conclusions are the appellate court’s powers
and responsibilities, which they are entrusted with for the overriding reason that justice needs are met.
Question. Explain the procedure for filing an appeal by an indigent person under Order XLIV
CPC. How does the law facilitate access to justice for financially weaker sections in appellate
proceedings?
Answer. Appeals by Indigent Persons under Order 44 of the CPC
Introduction:-
Under Order 44 there are 3 Rules which deal with
the provisions regarding the Appeals by the Indigent Persons. Order
44 rule 1 says that the provisions of order 44 are subject, in all
matters, including the presentation of such application, to the
provisions of Order 33 insofar as they are applicable.

Who may file an appeal (Order 44 Rule 1):-

Order 44 Rule 1 says that if Any person who is entitled to file an appeal but unable to pay the
necessary court fee may obtain the permission of the court to appeal as an indigent person.
For this purpose, he may present an application to the court, along with a memorandum of appeal. The
court may allow the applicant to appeal as an indigent person, subject to the provisions relating to suits
by indigent persons.

Order 44 rule 2 Grant of time for payment of Court-fee:-

Where an application is rejected under Rule 1 does not mean that
the Memorandum of appeal also rejected. Here it only means that
the court is not satisfied with the claim of the applicant that he is an
indigent person and nothing more. Rule 2 empowers the court to
grant the time to the applicant for payment of the court fees within
such time as may be fixed by the court or extended by it from time
to time.
Rule 3 Inquiry:-
Under Rule 3 if the appellant was allowed to sue as an indigent
person in trial court, then no fresh inquiry is necessary if the
applicant files an affidavit to the effect that he has not ceased to be
an indigent person since the date of the decree appealed from.
However, if the government pleader or the respondent disputes the
truth of the statement made in such affidavit, inquiry as to whether
or not the applicant is an indigent person shall be held by the
appellate court, or under its order by an officer of that court.
 And in second situation, where the applicant alleged that he
became an indigent person after the date of the decree appealed
from, the enquiry into the means of the applicant shall be made by
the appellate court or under its order by an officer of that code, or
by the trial court if appellate court considers it necessary in the
circumstances of the case.

Limitation:-
The period of limitation for presenting an application for leave to
appeal as an indigent person to High Court is 60 days and to other
court is 30 days. The limitation starts from the date of the decree
appealed from. If there is no reason to reject the application, the
court shall fix a day for receiving evidence in proof or disproof of the
indigence of the applicant. At least 10 days clear notice shall be
given to the opposite party and the government pleader.