Civil Appeal Practice Procedure Powers of Appellate Court Circumstances to remand back Order 41 Order 43 Section 96

1. CIVIL APPEALS –
PRACTICE, PROCEDURE
& POWERS OF
APPELLATE COURT
Presented by
Advocate K. SRI BHARATHI

2. INTRODUCTION
An appeal is a process by which a judgment/order of a subordinate Court is challenged before its
superior court. The person filing or continuing an appeal is called the appellant and the concerned
court is termed as the appellate Court. A party to a case does not have any inherent right to
challenge the judgment/order of a Court before its Superior Court. An appeal can be filed only if it is
specifically allowed by any law and has to be filed in the specified manner in the specified Courts.
The expression appeal has not been defined in the Code of Civil Procedure 1908. It is an application
or petition to appeal to the higher Court for consideration of the decision of appeal to the lower
court. It is a proceeding for review to be carried out by a higher authority of appeal decision given by
a lower one. An appeal is a creature of statute and the right to appeal is neither an inherent nor
natural right. Section 96 of the Civil Procedure Code gives the right to a litigant to appeal from an
original decree. Section 100 gives him the right to appeal from an appellate decree in certain cases.
Section 109 gives him the right to appeal to the Supreme Court in certain cases. Section 104 gives
him the right to appeal from orders as distinguished from decrees.

3. The Civil Procedure Code 1908 provides for appeals under Sections 96 to
112 to be read with Orders 41 to 45 of the Code.
• First Appeals [Section 96-99A and Order 41]
• Second Appeals [Section 100-103, 107-108 and Order 43]
• Orders from which appeal lies [Section 104]
• Powers of Appellate Courts [Section 107]
• Appeal to the Supreme Court [Section 109,112 and Order 45]

4. SECTION 2 (2) "Decree" means the formal expression of an
adjudication which, so far as regards the Court expressing it,
conclusively determines the rights of the parties with regard to all or
any of the matters in controversy in the suit and may be either
preliminary or final. It shall be deemed to include the rejection of a
plaint and the determination of any question within section 144, but
shall not include
(a) any adjudication from which an appeal lies as an appeal from an
order, or (b) any order of dismissal for default.
SECTION 2 (9) "Judgment" means the statement given by the
Judge on the grounds of a decree or order.“
SECTION 2 (14) “Order” means the formal expression of any
decision of a Civil Court which is not a decree

5. BASIS FOR
COMPARISON
DECREE ORDER
PASS
A decree is given in a suit started by the
introduction of a plaint.
On the other hand, an order is given in a
suit started by the introduction of the
plaint, application or appeal.
DEALS WITH
A decree is worried about the substantive legitimate
rights of the challenging parties.
The order considers the procedural
privileges or rights of the parties
concerned.
DEFINED IN
A decree is characterized under Section 2 (2) of the
Code of Civil Procedure Act, 1908.
An order is characterized under Section 2
(14) of the Act.
ASCERTAINMENT
OF RIGHTS
In a decree, the rights of the plaint and litigant are
unmistakably and clearly found out.
In the order, it may or may not state the
rights of plaint and litigant.
NUMBER There is just one decree in a suit. There can be numerous orders in a suit.
TYPES
A decree is generally appealable, with the exception
of when it is explicitly banned by law.
An order can be both appealable and non-
appealable.

6. Appeal maintainable
• Against a decree
• Against preliminary decree
• Against the final decree
• Rejection of plaint under Order 7 Rule 11 C.P.C.
• Determination of any question within Section 144 (restitution)
• The original decree passed ex-parte.

7. Appellate Court's Jurisdiction Under Section 96 CPC
Involves Rehearing On Questions Of Law As Well As
Fact: Manjula v. Shyamsundar, (2022) 3 SCC 90
"It is settled law that an appeal is a continuation of the original proceedings. The
appellate court's jurisdiction involves a rehearing of appeal on questions of law as
well as fact. The first appeal is a valuable right, and, at that stage, all questions of
fact and law decided by the trial court are open for reconsideration. The judgment of
the appellate court must, therefore, reflect a conscious application of mind and must
record the court's findings, supported by reasons for its decision in respect of all the
issues, along with the contentions put forth and pressed by the parties. Needless to
say, the first appellate court is required to comply with the requirements of Order 41
Rule 31 CPC and non-observance of these requirements lead to infirmity in the
judgment". the court added.

8. Who 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.

9. Who Cannot?
• A party that has relinquished its right of appeal as per an agreement that is
clear and unambiguous.
• A party which has availed the benefits under a decree
• Parties with a consent decree. Consent, in this case, could be a lawful
agreement or compromise, or could even be presumed from the conduct of the
parties.
• Parties, whose factum or compromise is in dispute or hasn’t been formulated.
• Parties involved in petty cases.
• No legal representatives are entitled to file an appeal against a deceased
person.

10. Section 96-100 CPC - A Person Affected By A Judgment/Decree But Not
A Party To Suit, Can Prefer Appeal With The Leave Of The Court:
My Palace Mutually Aided Coop. Society v. B. Mahesh,
2022 SCC OnLine SC 1170
The sine qua non for filing an appeal by a third party is that he must have been affected by reason of
the judgment and decree which is sought to be impugned, the bench of CJI NV Ramana, Justices
Krishna Murari and Hima Kohli observed.
"Sections 96 to 100 of CPC deals with the procedure for filing appeals from original decrees. A
perusal of the above provision makes it clear that the provisions are silent about the category of
persons who can prefer an appeal. But it is well settled legal position that a person who is affected by
a judgment but is not a party to the suit, can prefer an appeal with the leave of the Court. The sine
qua non for filing an appeal by a third party is that he must have been affected by reason of the
judgment and decree which is sought to be impugned.. In the light of the above, it can be safely
concluded any aggrieved party can prefer an appeal with the leave of the Court"

11. Strangers Cannot File Appeal Unless They Satisfy The
Court That They Are 'Aggrieved Persons’:
V.N.KRISHNA MURTHY vs. RAVIKUMAR, 2020 (9) SCC 501
Mere saying that the appellants are prejudicially affected by the decree is not sufficient. It
has to be demonstrated that the decree affects the legal rights of the appellants and would
have adverse effect when carried out. Facts of the case clearly demonstrate that suit which
has been decreed is confined only to a declaration sought in respect of an agreement to sell.
Injunction was also sought only against the defendant- society or its officers or assigns.
There is not even a whisper in the entire plaint or in suit proceedings about the sale deed
executed in favour of the appellants by the General Power of Attorney holders or even for
that matter in the judgment and decree of the Trial Court.. The appellants have thus failed to
demonstrate that they are prejudicially or adversely affected by the decree in question or
any of their legal rights stands jeopardized so as to bring them within the ambit of the
expression 'person aggrieved' entitling them to maintain appeal against the decree"

12. 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 the
parties.
(4) No appeal shall lie, except on a question of law, from a decree 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 ten thousand rupees.

13. Legality Of Order Setting Defendant Ex Parte Can Be Challenged In
Appeal Even Without Filing Application Under Order IX Rule 13
CPC: G.N.R. Babu v. B.C. Muthappa, 2022 SCC OnLine SC 1158
“8. This Court held that though after dismissal of an appeal under Section 96 of CPC against ex parte decree, application
under Rule 13 of Order IX of CPC will not be maintainable, there is no bar on unsuccessful defendant adopting both the
remedies simultaneously. In such a case, if the regular appeal against the decree is dismissed, obviously the application under
Rule 13 of Order IX of CPC cannot proceed. The reason is that explanation to Rule 13 of Order IX of CPC lays down that
where there has been an appeal against a decree passed ex parte and the appeal has been disposed of on any ground other than
withdrawal, application for setting aside ex parte decree will not lie. However, in the event an application under Rule 13 of
Order IX of CPC is dismissed, the defendant can prosecute the appeal against the decree as a right to prefer appeal
under Section 96 cannot be taken away in absence of any express provision to the contrary in CPC. In paragraph 38 of the
aforesaid decision, this Court held that when application under Rule 13 of Order IX of CPC filed by a defendant is dismissed,
the defendant cannot be permitted to raise a contention as regards the correctness or otherwise of the order posting the suit
for ex parte hearing and/or existence of a sufficient cause for non-appearance of the defendant.

14. 9. In this case, the question is when the defendant did not avail the remedy under Rule 13 of Order IX of CPC, whether it is
open for him to agitate in the regular appeal against the decree that the trial court had no justification for proceeding ex
parte against the appellant. In such a case, though the appellant would not be entitled to lead evidence in appeal for making
out a sufficient cause for his absence before the trial court, he can always argue on the basis of the record of the suit that
either the suit summons was not served upon him or that even otherwise also, the trial court was not justified in
proceeding ex parte against him. The reason is that under Section 105 of CPC when a decree is appealed from, any error,
defect, or irregularity in any order affecting the decision of the case can be set forth as a ground of objection in the
Memorandum of Appeal. Thus, in such a case, the appellant can always urge in an appeal against the decree that an interim
or interlocutory order passed during the pendency of the suit affecting the decision of the case was illegal. Therefore, the
appellant, while challenging the ex parte decree by filing an appeal, can always point out from the record of the trial court
that the order passed to proceed with the suit ex parte against him was illegal. As held in the case of Bhanu Kumar Jain, only
when the application made by a defendant under Rule 13 of Order IX of CPC is dismissed that such a defendant cannot
agitate in the appeal against ex parte decree that the order directing that the suit shall proceed ex parte was illegal or
incorrect. However, in this case, the appellant has not filed an application under Rule 13 of Order IX of CPC. Therefore, such
a contention can be raised by him.”

15. An appeal does not lie against mere "findings“:
Deva Ram v. Ishwar Chand, (1995) 6 SCC 733
It is provided in Section 96 of the C.P.C. that an appeal shall lie from every decree passed by any court exercising
original jurisdiction to the court authorized to hear an appeal from the decision of such court. So also, Section 100 also
provides that an appeal shall lie to the High Court from every decree passed in appeal. Thus sine qua non in both the
provisions is the “decree” and unless the decree is passed, an appeal would not lie under Section 96 nor would it lie
under Section 100 of the Civil Procedure Code. Similarly, an appeal lies against an “order” under Section 104 read
with Order 43 Rule 1 of the Civil Procedure Code where the “orders” against which the appeal would lie have been
enumerated. Unless there is an "order" as defined in Section 2(14) and unless that "order" falls within the list of
"orders" indicated in Order 43, an appeal would not lie.
Thus, an appeal does not lie against mere "findings" recorded by a court unless the findings amount to a "decree" or
"order". Where a suit, is dismissed, the defendant against whom an adverse finding might have come to be recorded on
some issue, has no right of appeal and he cannot question those findings before the appellate court. (See Ganga Bai v.
Vijay Kumar, (1974) 2 SCC 393)

16. No Conditional Admission of an appeal under Section 96:
Devi Theatre v. Vishwanath Raju, (2004) 7 SCC 337
The learned counsel for the appellant submits that appeal lies from every decree passed by any court
exercising original jurisdiction. The jurisdiction of the Court in first appeal extends to examine the questions
of facts as well as that of law. It is though true as pointed out by the learned counsel for the respondent that
under Order 41 Rule 11 CPC it would be open for the court to dismiss the appeal in limine at the time of
admission but even examining the matter from that point of view we find that the court while considering the
question of admission of appeal filed under Section 96 CPC, may admit the appeal if considered fit for full
hearing having prima facie merit. Otherwise,. if it finds that the appeal lacks merits it may be dismissed at the
initial stage itself. But admission of the appeal, subject to condition of deposit of some given amount, is
not envisaged in the provision as contained under Section 96 read with Order 41 Rule 11 CPC. The
deposit of the money would obviously have no connection with the merits of the case, which alone
would be basis for admitting or not admitting an appeal filed under Section 96 CPC. Further,
imposition of condition that failure to deposit the amount, would result in dismissal of the appeal
compounds the infirmity in the order of conditional admission.

17. SECTION 97. Appeal from final decree where no
appeal from the 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.

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

19. 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 [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:
[Provided that nothing in this section shall apply to non-joinder of a necessary
party.]

20. 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.

21. 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:—
(ff) an order under section 35A;
(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:
[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.

22. 105. Other orders.—(1) Save as otherwise expressly provided, no appeal shall lie
from any order made by a Court in the exercise of its original or appellate
jurisdiction; but where a decree is appealed from, any error, defect, or irregularity in
any order, affecting the decision of the case, may be set forth as a ground of
objection in the memorandum of appeal.
(2) Notwithstanding anything contained in sub-section (1), where any party aggrieved
by an order of remand from which an appeals lies does not appeal therefrom, he shall
thereafter be precluded from disputing its correctness.
106. What Courts to hear appeals.—Where an appeal from any order is allowed it
shall lie to the Court to which an appeal would lie from the decree in the suit in which
such order was made, or where such order is made by a Court (not being a High
Court) in the exercise of appellate jurisdiction, then to the High Court

23. 107. Powers of Appellate Court.—
(1) Subject to such conditions and limitations as may be prescribed, an Appellate Court
shall have power—
(a) to determine a case finally;
(b) to remand a case;
(c) to frame issues and refer them for trial;
(d) to take additional evidence or to require such evidence to be taken.
(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall
perform as nearly as may be the same duties as are conferred and imposed by this
Code on Courts of original jurisdiction in respect of suits instituted therein

24. Grant of Interim Orders
• Attachment before Judgment – Order 38 Rule 5
• Injunctions – Order 39 Rule 1 & 2
• Appointment of Receivers – Order 40

25. Appellate Court to take note of Subsequent Events:
DDA v. Joginder S. Monga, (2004) 2 SCC 297
The appellant being a State, it was required to act fairly and reasonably in all circumstances even in the matter of
eviction of a tenant. [See M/s Dwarkadas Marfatia and Sons vs. Board of Trustees of the Port of Bombay, AIR 1989 SC
1462]. But the respondents herein are victims of situation. Stricto sensu they cannot take advantage of the order passed
by the High Court. The High Court gave them opportunities to get their deed registered. They could have refused to do
so and in that event like Rajeev Gupta they were not required to deposit the amount. The parties did not contemplate that
the Central Government would come out with another policy decision, which would be more beneficial to the sub-
lessee. A fortuitous circumstance like the issuance of the said circular dated 28.6.1999 was not in contemplation. The
appellant, therefore, cannot, keeping in view the prospective effect given to the said circular, take any benefit thereof.
Furthermore, they have not filed any application to amend their writ petition. They merely have urged additional
grounds. It is no doubt true that this Court can take into consideration subsequent events and mould relief
accordingly but thereby it cannot substitute a new relief based on a fresh cause of action. We are, therefore, of the
opinion that the interim order passed by the High Court does not come to the aid of the respondents.

26. 108. Procedure in appeals from appellate decrees and
orders.—
The provisions of this Part relating to appeals from original decrees shall, so far as
may be, apply to appeals—
(a) from appellate decrees, and
(b) from orders made under this Code or under any special or local law in which a
different procedure is not provided.

27. Procedure for Appeal from Original Decrees (Order XLI):
• The appeal shall be filed in the form prescribed, signed by the appellant,
along with a true certified copy of the order.
• The appeal shall contain the grounds of objection under distinct heads,
and such grounds shall be numbered consecutively.
• If the appeal is against a decree for payment of money, the court may
require the appellant to deposit the disputed amount or furnish any other
security.
• A ground/objection that has not been mentioned in the appeal, cannot be
taken up for arguments, without the permission of the court.
• Similarly any point of act which was not taken up by the Appellant, in
lower court, cannot be taken up in appeal and it lies only against those
points which have been decided by the court rightly or wrongly.

28. Memorandum of Appeal (Order XLI, Rule 1):
• An appeal must be supported with a memorandum of appeal, which is a document comprising
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 judgment.
• 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 memorandum of appeal must contain the grounds of objections to the decree
appealed from, concisely, under distinct heads, without any arguments or narrative, and should be
numbered consecutively. 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.

29. ORDER XLI
APPEALS FROM ORIGINAL DECREES
1. Form of appeal What to accompany memorandum—(1) Every appeal shall be
preferred in the form of a memorandum signed by the appellant or his pleader and
presented to the Court or to such officer as it appoints on this behalf. The memorandum
shall be accompanied by a copy of the Judgment.
Provided that where two or more suits have been tried together and a common judgment has
been delivered therefor and two or more appeals are filed against any decree covered by that
judgment, whether by the same appellant or by different appellants, the Appellate Court may
dispense with the filing of more than one copy of the judgment.
(2) Contents of memorandum.—The memorandum shall set forth, concisely and under
distinct heads, the grounds of objection to the decree appealed from without any argument
or narrative; and such grounds shall be numbered consecutively.
[(3) Where the appeal is against a decree for payment of money, the appellant shall, within
such time as the Appellate Court may allow, deposit the amount disputed in the appeal or
furnish such security in respect thereof as the Court may think fit.]

30. RULE 2. Grounds which may be taken in appeal.—
The appellant shall not, except by leave of the Court, urge or be heard in support of
any ground of objection not set forth in the memorandum of appeal; but the
Appellate Court, in deciding the appeal, shall not be confined to the grounds of
objections set forth in the memorandum of appeal or taken by leave of the Court
under this rule:
Provided that the Court shall not rest its decision on any other ground unless the
party who may be affected thereby has had a sufficient opportunity of contesting the
case on that ground.

31. RULE 3. Rejection or amendment of memorandum.—
(1) Where the memorandum of appeal is not drawn up in the manner hereinbefore
prescribed, it may be rejected, or be returned to the appellant for the purpose of
being amended within a time to be fixed by the Court or be amended then and there.
(2) Where the Court rejects any memorandum, it shall record the reasons for such
rejection.
(3) Where a memorandum of appeal is amended, the judge, or such officer as he
appoints on this behalf, shall sign or initial the amendment.

32. RULE 3A. Application for condonation of delay.—
(1) When an appeal is presented after the expiry of the period of limitation specified
therefore, it shall be accompanied by an application supported by an affidavit setting
forth the facts on which the appellant relies to satisfy the Court that he had sufficient
cause for not preferring the appeal within such period.
(2) If the Court sees no reason to reject the application without the issue of a notice
to the respondent, notice hereof shall be issued to the respondent and the matter shall
be finally decided by the Court before it proceeds to deal with the appeal under rule
11 or rule 13, as the case may be.
(3) Where an application has been made under sub-rule (1), the Court shall not make
an order fact the stay of execution of the decree against which the appeal is proposed
to be filed so long as the Court does not, after hearing under rule 11, decide to hear
the appeal

33. RULE 4. One of several plaintiffs or defendants may
obtain reversal of the whole decree where it proceeds on
ground common to all.—
Where there are more plaintiffs or more defendants than one in a suit, and the decree
appealed from proceeds on any ground common to all the plaintiffs or to all the
defendants, any one of the plaintiffs or of the defendants may appeal from the whole
decree, and thereupon the Appellate Court may reverse or vary the decree in favor of
all the plaintiffs or defendants, as the case may be.

34. RULE 5. Stay by Appellate Court.—
An appeal shall not operate as a stay of proceedings under a decree or order appealed
from except so far as the Appellate Court may order, nor shall execution of a decree
be stayed by reason only of an appeal having been preferred from the decree; but the
Appellate Court may for sufficient cause order stay of execution of such decree. 1
Explanation.—An order by the Appellate Court for the stay of execution of the
decree shall be effective from the date of the communication of such order to the
Court of first instance, but an affidavit sworn by the appellant, based on his personal
knowledge, stating that an order for the stay of execution of the decree has been
made by the Appellate Court shall, pending the receipt from the Appellate Court of
the order for the stay of execution or any order to the contrary, be acted upon by the
Court of first instance.

35. (2) Stay by Court which passed the decree.—Where an application is made for a stay of
execution of an appealable decree before the expiration of the time allowed for appealing
therefrom, the Court which passed the decree may on sufficient cause being shown order the
execution to be stayed.
(3) No order for stay of execution shall be made under sub-rule (1) or sub-rule (2) unless the
Court making it is satisfied—
(a) that substantial loss may result to the party applying for stay of execution unless the order
is made;
(b) that the application has been made without unreasonable delay; and
(c) that security has been given by the applicant for the due performance of such decree or
order as may ultimately be binding upon him.
(4) Subject to the provision of sub-rule (3), the Court may make an ex parte order for stay of
execution pending the hearing of the application.
(5) Notwithstanding anything contained in the foregoing sub-rules, where the appellant fails
to make the deposit or furnish the security specified in sub-rule (3) of rule 1, the Court shall
not make an order staying the execution of the decree.

36. Mere Filing Of Appeal Would Not Operate As A Stay Of Decree
SANJIV KUMAR SINGH Vs. THE STATE OF BIHAR & ORS,
2023 LiveLaw (SC) 63
Order 41 Rule 5 - Unless the appeal is listed and there is an interim order, the mere
filing of the appeal would not operate as a stay.

37. RULE 6. Security in case of order for execution of decree
appealed from.—
(1) Where an order is made for the execution of a decree from which an appeal is
pending, the Court which passed the decree shall, on sufficient cause being shown by
the appellant, require security to be taken for the restitution of any property which
may be or has been taken in execution of the decree or for the payment of the value
of such property and for the due performance of the decree or order of the
Appellate Court, or the Appellate Court may for like cause direct the Court which
passed the decree to take such security.
(2) Where an order has been made for the sale of immovable property in execution
of a decree, and an appeal is pending from such decree, the sale shall, on the
application of the judgment-debtor to the Court which made the order, be stayed on
such terms as to giving security or otherwise as the Court thinks fit until the appeal is
disposed of

38. RULE 8. Exercise of power in appeal from order made
in execution of decree.—
The powers conferred by rules 5 and 6 shall be exercisable where an appeal
may be or has been preferred not from the decree but from an order made in
execution of such decree.

39. Procedure on admission of appeal
• RULE 9. Registry of memorandum of appeal
• RULE 10. Appellate Court may require appellant to furnish security for costs
• RULE 11. Power to dismiss appeal without sending notice to Lower Court
• RULE 11A. Time within which hearing under rule 11 should be concluded
• RULE 12. Day for hearing appeal.
• RULE 14. Publication and service of notice of day for hearing appeal

40. Procedure on hearing
16. Right to begin.—
(1) On the day fixed, or on any other day to which the hearing may be adjourned, the
appellant shall be heard in support of the appeal.
(2) The Court shall then, if it does not dismiss the appeal at once, hear the respondent against
the appeal, and in such case, the appellant shall be entitled to reply.
17. Dismissal of appeal for appellants’ default.—(1) Where on the day fixed, or on any
other day to which the hearing may be adjourned, the appellant does not appear when the
appeal is called on for hearing, the Court may make an order that the appeal be dismissed.
Explanation.—Nothing in this sub-rule shall be construed as empowering the Court to
dismiss the appeal on the merits.
(2) Hearing appeal ex parte.—Where the appellant appears and the respondent does not
appear, the appeal shall be heard ex parte.

41. Prabodh Choudhury Das v. Mahamaya
Das, (2020) 18 SCC 701; 2020 (1) CTC 237
“8. Explanation to subrule (1) of Rule 17 was added by Act 104 of 1976. Prior to
1976 conflicting views were expressed by different High Courts in the country as to the
purport and meaning of sub rule (1) of Rule 17 of Order 41 of CPC. Therefore, the
explanation was introduced w.e.f 01.02.1977, to clarify the law by making an express
provision that where the appellant does not appear, the Court has no power to dismiss
the appeal on merits. Thus, Order 41 Rule 17(1) read with its explanation makes it
explicit that the Court cannot dismiss the appeal on merits where the appellant remains
absent on the date fixed for hearing. In other words, if the appellant does not appear,
the Court may if it deems fit dismiss the appeal for default of appearance but it
does not have the power to dismiss the appeal on merits.”
•

42. Appeal Can't Be Dismissed On Merits If Appellant Fails To
Appear; To Be Dismissed For Non-Prosecution: BENNY
DSOUZA vs. MELWIN DSOUZA, 2023 LiveLaw (SC) 1032
The Supreme Court stated that if the appellant does not appear when the appeal is called for
a hearing, then the same can be dismissed for non-prosecution and not on merits. These
findings were in the context of an explanation provided in Order XLI Rule 17 of the Civil
Procedure Code, 1908. This order entitles the Court to dismiss an appeal if, on the day fixed
for hearing, the appellant does not appear. Its explanation reads as follows:
“Explanation. - Nothing in this sub-rule shall be construed as empowering the Court to
dismiss the appeal on the merits.”
The Bench of Justices BV Nagarathna and Justice Ujjal Bhuyan, interpreting the same,
opined: “The Explanation categorically states that if the appellant does not appear when the
appeal is called for hearing, it can only be dismissed for non-prosecution and not on merits.”

43. RULE 19. Re-admission of appeal dismissed for default
RULE 20. Power to adjourn hearing and direct persons appearing interested
to be made respondents
RULE 21. Re-hearing on application of respondent against whom ex parte
decree made
Where an appeal is heard ex parte and judgment is pronounced against the
respondent, he may apply to the Appellate Court to re-hear the appeal; and, if he
satisfies the Court that the notice was not duly served or that he was prevented by
sufficient cause from appearing when the appeal was called on for hearing, the Court
shall re-hear the appeal on such terms as to costs or otherwise as it thinks fit to
impose upon him

44. Cross Objection (Section 41 and Order 41 Rule 22):
• Cross objection is like an appeal. It has all the trappings of an appeal. It is filed in the form of a memorandum
and the provisions of Rule 1 of Order 41 of the Code, so far as these relate to the form and contents of the
memorandum of appeal apply to cross-objection as well.
• Court fee is payable on cross-objection like that on the memorandum of appeal. Provisions relating to appeals by
indigent persons also apply to cross-objection.
• Even where the appeal is withdrawn or is dismissed for default, cross-objection may nevertheless be heard and
determined.
• Respondent even though he has not appealed may support the decree on any other ground but if wants to
modify it, he has to file a cross-objection to the decree which objections he could have taken earlier by filing an
appeal.
• Time for filing objection which is in the nature of appeal is extended by one month after service of notice on him
of the day fixed for hearing the appeal. This time could also be extended by the court like in appeal.
• Cross-objection is nothing but an appeal, a cross-appeal at that. It may be that the respondent wanted to give
quietus to the whole litigation by his accepting the judgment and decree or order even if it was partly against his
interest. When, however, the other party challenged the same by filing an appeal statute gave the respondent a
second chance to file an appeal by way of cross-objection if he still felt aggrieved by the judgment and decree or
order.

45. RULE 22. Upon hearing respondent may object to decree
as if he had preferred separate appeal.—
(1) Any respondent, though he may not have appealed from any part of the decree,
may not only support the decree [but may also state that the finding against him in the
Court below in respect of any issue ought to have been in his favour; and may also
take any cross-objection] to the decree which he could have taken by way of appeal
provided he has filed such objection in the Appellate Court within one month from
the date of service on him or his pleader of notice of the day fixed for hearing the
appeal, or within such further time as the Appellate Court may see fit to allow.
Explanation. —A respondent aggrieved by a finding of the Court in the judgment
on which the decree appealed against is based may, under this rule, file cross-objection
in respect of the decree in so far as it is based on that finding, notwithstanding that by
reason of the decision of the Court on any other finding which is sufficient for the
decision of the suit, the decree, is, wholly or in part, in favour of that respondent

46. (2) Form of objection and provisions applicable thereto.—
Such cross-objection shall be in the form of a memorandum, and the provisions
of rule 1, so far as they relate to the form and contents of the memorandum of
appeal, shall apply thereto.
(3) ****
(4) Where, in any case in which any respondent has under this rule filed a
memorandum of the objection, the original appeal is withdrawn or is dismissed
for default, the objection so filed may nevertheless be heard and determined after
such notice to the other parties as the Court thinks fit.
(5) The provisions relating to appeals by indigent persons shall, so far as they can
be made applicable, apply to an objection under this rule.

47. Cross Objections Have All Trappings Of Regular Appeal ;
Must Be Considered In Full: Dheeraj Singh v. Greater Noida
Industrial Development Authority, 2023 SCC OnLine SC 768
“In cases where the opposing party files a first appeal against part or whole of the original decree, and the respondent
in the said first appeal, due to part or whole of the decree being in their favour, abstains from filing an appeal at the
first instance, in such cases, to ensure that the respondent is also given a fair chance to be heard, he is given the right to
file his cross objections within the appeal already so instituted by the other party, against not only the contentions raised
by the other party, but also against part or whole of the decree passed by the court of first instance.
In a similar circumstance, where the other party in the first instance has preferred an appeal, apart from the remedy of
cross objections, the respondent can also file a cross appeal within the limitation period so prescribed, which in essence
is a separate appeal in itself, challenging part or whole of the original decree, independent of the appeal filed by the
other party. The respondent also has the right to fully support the original decree passed by the lower court in full.
While cross objections, unlike a regular appeal, are filed within an already existing appeal, however, as per Order 41
Rule 22 of the CPC, cross objections have all the trappings of a regular appeal, and therefore, must be considered in
full by the court adjudicating upon the same.”

48. Saurav Jain v. A.B.P. Design,
2021 SCC OnLine SC 552
Order XLI Rule 22 CPC was amended by the CPC Amendment (Act 104 of 1976), with effect from 1 February 1977.
The effect of the amendment was considered in Banarsi & Ors. v. Ram Phal, 2003 (9) SCC 606 where this Court
held that after the 1976 amendment, the respondent could file cross-objections against the ‘findings’ of the lower
court, while previously cross-objections could only be filed when the decree of the lower court was partly against the
respondent. Justice R.C Lahoti (as the learned Chief Justice then was), speaking for the two-judge bench observed:
“10-. […] There may be three situations:
(i) The impugned decree is partly in favor of the appellant and partly in favor of the respondent.
(ii) The decree is entirely in favour of the respondent though an issue has been decided against the respondent.
(iii) The decree is entirely in favor of the respondent and all the issues have also been answered in favor of the
respondent but there is a finding in the judgment which goes against the respondent.

49. 11. In the type of case (i) it was necessary for the respondent to file an appeal or take cross-objection against that
part of the decree which is against him if he seeks to get rid of the same though that part of the decree which is in
his favor he is entitled to support without taking any cross-objection. The law remains so post-amendment too. In
the types of cases (ii) and (iii) preamendment CPC did not entitle nor permit the respondent to take any cross-
objection as he was not the person aggrieved by the decree. Under the amended CPC, read in the light of the
explanation, though it is still not necessary for the respondent to take any cross-objection laying challenge to any
finding adverse to him as the decree is entirely in his favor and he may support the decree without cross objection;
the amendment made in the text of sub-rule (1), read with the explanation newly inserted, gives him a right to take
cross-objection to a finding recorded against him either while answering an issue or while dealing with an issue.
The advantage of preferring such cross-objection is spelled out by subrule (4). In spite of the original appeal
having been withdrawn or dismissed for default the cross-objection taken to any finding by the respondent shall
still be available to be adjudicated upon on merits which remedy was not available to the respondent under the
unamended CPC. In the pre-amendment era, the withdrawal or dismissal for default of the original appeal
disabled the respondent to question the correctness or otherwise of any finding recorded against the respondent.”

50. It is apparent from the amended provisions of Order XLI Rule 22 CPC and the above
authorities that there are two changes that were brought by the 1976 amendment.
First, the scope of filing a cross-objection was enhanced substantively to include
objections against the ‘findings’ of the lower court; second, different forms of raising
cross-objections were recognized. The amendment sought to introduce different
forms of cross-objection for assailing the findings and decrees since the amendment
separates the phrase “but may also state that the finding against him in the Court
below in respect of any issue ought to have been in his favor” from “may also take
any cross-objection to the decree” with a semicolon. Therefore, the two parts of the
sentence must be read disjunctively. Only when a part of the decree has been assailed
by the respondent, should a memorandum of cross-objection be filed. Otherwise, it is
sufficient to raise a challenge to an adverse finding of the court of first instance
before the appellate court without a cross objection.

51. Cross objection is the exercise of right of
appeal: Banarsi v. Ram Phal, (2003) 9 SCC 606
Any respondent though he may not have filed an appeal from any part of the decree may still support the
decree to the extent to which it is already in his favour by laying challenge to a finding recorded in the
impugned judgment against him. Where a plaintiff seeks a decree against the defendant on grounds (A) and
(B), any one of the two grounds being enough to entitle the plaintiff to a decree and the Court has passed a
decree on ground (A) deciding it for the plaintiff while ground (B) has been decided against the plaintiff, in
an appeal preferred by the defendant, in spite of the finding on ground (A) being reversed the plaintiff as a
respondent can still seek to support the decree by challenging finding on ground (B) and persuade the
appellate court to form an opinion that in spite of the finding on ground (A) being reversed to the benefit of
defendant-appellant the decree could still be sustained by reversing the finding on ground (B) though the
plaintiff-respondent has neither preferred an appeal of his own nor taken any cross objection. A right to file
cross objection is the exercise of right to appeal though in a different form.

52. It was observed in Sahadu Gangaram Bhagade v. Special Deputy Collector.
Ahmednagar and Anr., [1971] 1 SCR 146 that the right given to a respondent in
an appeal to file cross objection is a right given to the same extent as is a right of
appeal to lay challenge to the impugned decree if he can be said to be aggrieved
thereby. Taking any cross objection is the exercise of right of appeal and takes the
place of cross-appeal though the form differs. Thus it is clear that just as an appeal
is preferred by a person aggrieved by the decree so also a cross objection is
preferred by one who can be said to be aggrieved by the decree. A party who has
fully succeeded in the suit can and needs to neither prefer an appeal nor take any
cross objection though certain finding may be against him. Appeal and cross-
objection - both are filed against decree and not against judgment and certainly not
against any finding recorded in a judgment. This was well-settled position of law
under the unamended CPC.

53. RULE 23. Remand of case by Appellate Court.—
Where the Court from whose decree an appeal is preferred has disposed of the suit
upon a preliminary point and the decree is reversed in appeal, the Appellate Court
may, if it thinks fit, by order remand the case, and may further direct what issue or
issues shall be tried in the case so remanded, and shall send a copy of its judgment
and order to the Court from whose decree the appeal is preferred, which directions
to re-admit the suit under its original number in the register of civil suits, and
proceed to determine the suit; and the evidence (if any) recorded during the
original trial shall, subject to all just exceptions, be evidence during the trial after
remand.

54. RULE 23A. Remand in other cases.—Where the Court from whose
decree an appeal is preferred has disposed of the case otherwise than on a preliminary
point, and the decree is reversed in appeal and a re-trial is considered necessary, the
Appellate Court shall have the same powers as it has under rule 23.
RULE 24. Where evidence on record sufficient Appellate
Court may determine case finally.—Where the evidence upon the
record is sufficient to enable the Appellate Court to pronounce judgement, the
Appellate Court may, after resettling the issues, if necessary, finally determine the suit,
notwithstanding that the judgment of the Court from whose decree the appeal is
preferred has proceeded wholly upon some ground other than that on which the
Appellate Court proceeds.

55. Appellate Court Can't Remand Suit For De Novo Trial Merely
Because A Particular Evidence Has Not Been Adduced:
Sirajudheen v. Zeenath, 2023 SCC OnLine SC 196
The Supreme Court held that High Courts ought not to remand a matter for trial de novo without recording any explanation as to on what
ground the decree was being reversed by it.
The Court further observed that a de novo trial cannot be ordered merely because a particular evidence has not been adduced. If one
party has not produced evidence, then adverse inference can be drawn against them, but that is not a ground to remand the matter for a
fresh trial.
"...merely because a particular evidence which ought to have been adduced but had not been adduced, the Appellate Court cannot adopt
the soft course of remanding the matter"
A Bench comprising Justice Dinesh Maheshwari and Justice Sudhanshu Dhulia set aside an order of Kerala High Court, whereby it
had remanded a matter for trial de novo without adverting to the findings of the Trial Court and without specifying how the findings
recorded by the Trial Court was unjustified.
Necessary requirement for remand under Rule 23A is that the decree is reversed in appeal and a re-trial is considered necessary
- the reversal has to be based on cogent reasons and for that matter, adverting to and dealing with the reasons that had prevailed
with the Trial Court remains a sine qua non

56. Remand Order Prolongs & Delays Litigation: Supreme Court
Explains Scope Of Appellate Court's Power To Remand:
Arvind Kumar Jaiswal v. Devendra Prasad Jaiswal Varun,
2023 SCC OnLine SC 146
An order of remand prolongs and delays the litigation and hence, should not be passed unless the
appellate court finds that a re-trial is required, or the evidence on record is not sufficient to dispose of
the matter for reasons like lack of adequate opportunity of leading evidence to a party, where there had
been no real trial of the dispute or there is no complete or effectual adjudication of the proceedings, and
the party complaining has suffered material prejudice on that account. Where evidence has already
been adduced and a decision can be rendered on appreciation of such evidence, an order of remand
should not be passed remitting the matter to the lower court, even if the lower court has omitted to
frame the issue(s) and/or has failed to determine any question of fact, which, in the opinion of the
appellate court, is essential. The first appellate court, if required, can also direct the trial court to record
evidence and findings on a particular aspect/issue in terms of Rule 25 to Order XLI, which then can be
taken on record for deciding the case by the appellate court.

57. Shivakumar v. Sharanabasappa, (2021) 11 SCC 277;
2020 (4) CTC 321
WHETHER REMAND WAS CALLED FOR
“25.2. Rule 23A came to be inserted in Order XLI CPC by way of the Code of Civil Procedure (Amendment)
Act, 1976. Prior to this amendment, it was generally accepted by the Courts that although under Rule 23, an
order of remand could be made only on reversal of a decree disposing of suit on a preliminary point, the
Appellate Court has the inherent power of remanding a case where it was considered necessary to do so in
the interest of justice. Some of the High Courts had made similar provisions by way of their respective
amendments. Insertion of Rule 23A in Order XLI by the Amending Act of 1976 makes it explicit that even
when the suit has been disposed of otherwise than on a preliminary point and the decree is reversed in
appeal, the Appellate Court shall have the power of remand, if a re-trial is considered necessary.
"25.3. A comprehension of the scheme of the provisions for remand as contained in Rules 23 and 23A of
Order XLI is not complete without reference to the provision contained in Rule 24 of Order XLI that enables
the Appellate Court to dispose of a case finally without a remand if the evidence on record is sufficient;
notwithstanding that the Appellate Court proceeds on a ground entirely different from that on which the
Trial Court had proceeded.”

58. “25.4. A conjoint reading of Rules 23, 23A, and 24 of Order XLI brings forth the scope as
also contours of the powers of remand that when the available evidence is sufficient to dispose
of the matter, the proper course for an Appellate Court is to follow the mandate of Rule 24 of Order
XLI CPC and to determine the suit finally. It is only in such cases where the decree in the challenge
is reversed in appeal and a re-trial is considered necessary that the Appellate Court shall adopt the
course of remanding the case. It remains trite that an order of remand is not to be passed in
a routine manner because an unwarranted order of remand merely elongates the life of
the litigation without serving the cause of justice. An order of remand only on the ground that
the points touching the appreciation of evidence were not dealt with by the Trial Court may not be
considered proper in a given case because the First Appellate Court itself is possessed of
jurisdiction to enter into facts and appreciate the evidence. There could, of course, be several
eventualities that may justify an order of remand or where remand would be rather necessary
depending on the facts and the given set of circumstances of a case.”

59. Shivashankara v. H.P. Vedavyasa Char,
2023 LiveLaw (SC) 261, 2023 SCC OnLine SC 358
There can be no doubt with respect to the settled position that the Court
to which the case is remanded has to comply with the order of remand
and acting contrary to the order of remand is contrary to law. In other
words, an order of remand has to be followed in its true spirit. (Para 7)

60. RULE 25. Where Appellate Court may frame issues and refer them for trial to Court
whose decree appealed from.—
Where the Court from whose decree the appeal is preferred has omitted to frame or try any
issue, or to determine any question of fact, which appears to the Appellate Court essential to the
right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues,
and refer the same for trial to the Court from whose decree the appeal is preferred, and in such
case shall direct such Court to take the additional evidence required;
and such Court shall proceed to try such issues, and shall return the evidence to the Appellate
Court together with its findings thereon and the reasons therefor within such time as may be
fixed by the Appellate Court or extended by it from time to time.
RULE 26. Findings and evidence to be put on record. Objections to findings.—(1) Such
evidence and findings shall form part of the record in the suit; and either party may, within a
time to be fixed by the Appellate Court, present a memorandum of objections to any finding. (2)
Determination of appeal.—After the expiration of the period so fixed for presenting such
memorandum the Appellate Court shall proceed to determine the appeal. 1
RULE 26A. Order of remand to mention date of next hearing.

61. RULE 27. Production of additional evidence in Appellate Court.—
(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or
documentary, in the Appellate Court. But if —
(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to
have been admitted, or 1
(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due
diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be
produced by him at the time when the decree appealed against was passed, or
(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it
to pronounce judgment, or for any other substantial cause,
the Appellate Court may allow such evidence or document to be produced, or witness to be examined.
(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record
the reason for its admission.
RULE 28. Mode of taking additional evidence
RULE 29. Points to be defined and recorded

62. Corporation of Madras and another Vs.
M.Parthasarathy and others, 2018 (9) SCC 445;
2018 (8) MLJ 208 (SC)
“15) First, it took into consideration the additional piece of evidence while deciding the appeals on
merits without affording any opportunity to the appellants herein (who were respondents in the first
appeals) to file any rebuttal evidence to counter the additional evidence adduced by the respondents
(appellants before the first Appellate Court). This caused prejudice to the appellants herein because
they suffered the adverse order from the Appellate Court on the basis of additional evidence adduced
by the respondents for the first time in an appeal against them.
16) The second error was of a procedure in which the first Appellate Court failed to resort to
disposing of the appeals. This also involved a question of jurisdiction.

63. 17) Having allowed the CMP No.1559/1993 and, in our opinion rightly, the first Appellate
Court had two options, first it could have either set aside the entire judgment/decree of the
Trial Court by taking recourse to the provisions of Order 41 Rule 23A of the Code and
remanded the case to the Trial Court for retrial in the suits so as to enable the parties to
adduce oral evidence to prove the additional evidence in accordance with law or second, it
had the option to invoke powers under Order 41 Rule 25 of the Code by retaining the
appeals to itself and remitting the case to the Trial Court for limited trial on particular issues
arising in the case in the light of additional evidence which was taken on record and invite
findings of the Trial Court on such limited issues to enable the first Appellate Court to decide
the appeals on merits.
18) The first Appellate Court failed to take note of both the above-mentioned provisions and
proceeded to allow it wrongly.
21) In the light of the foregoing discussion and having regard to the totality of the facts of the
case and to enable the parties to have full and fair trial, we consider it proper to take
recourse to the powers under Order 41 Rule 23A of the Code and accordingly set aside the
judgment and decree of the first Appellate Court to the extent it allows the respondents’
appeals on merit but at the same time uphold that part of the order which has allowed CMP
No.1559/1993 filed by the plaintiffs for adducing additional evidence and remand the cases
to the Trial Court for retrial of all the four civil suits on merits afresh.”

64. A.N.S. Murugan v. M. Sivananda Mudaliar, 2020 SCC
OnLine Mad 8415; 2020 (5) CTC 194, followed
M.Parthasarathy (Supra)
“13. This Court is in agreement with the appellant. As pointed out by the Learned Counsel for the appellant, the
1st Appellate Court has committed a grave error by admitting the additional document without proof. The
Lower Appellate Court has failed to follow the procedure contemplated under Order 41 Rule 28 of C.P.C.
while admitting the additional evidence.
14. In this case, the 1st Appellate Court has failed to give the opportunity to the appellant herein to contest the
admissibility and relevancy of the document produced as additional evidence.
15. In this case also the 1st Appellate Court has failed to follow the mandate contemplated under Order 41 Rule
28 C.P.C. Further had relied heavily upon the additional document to base his findings. Therefore, the judgment
and decree of the Lower Appellate Court which is impugned in the Second Appeal is liable to be set aside.
Accordingly, the Second Appeal is Allowed. The judgment and decree passed by the trial Court in A.S.No.13 of
2006 is set aside. The matter is remanded back to the 1st Appellate Court to rehear the appeal afresh along with
I.A., filed for receiving additional documents. If the Lower Appellate Court is of the opinion that there is a
reasonable ground to receive the additional evidence, the Learned Judge shall follow the mode of taking
additional evidence and act in accordance with the law”

65. True Test Is Whether Appellate Court Can Pronounce Judgment
Without Considering Additional Evidence Sought To Be Adduced:
Sanjay Kumar Singh v. State of Jharkhand, (2022) 7 SCC 247
The court observed that an application seeking to adduce additional evidence can be
allowed where
(1) the additional evidence sought to be adduced removes the cloud of doubt over
the case and
(2) the evidence has a direct and
(3) important bearing on the main issue in the suit and interest of justice clearly
renders it imperative that it may be allowed to be permitted on record.

66. "Admissibility of additional evidence does not depend upon the relevancy to the
issue on hand, or on the fact, whether the applicant had an opportunity for
adducing such evidence at an earlier stage or not, but it depends upon whether or
not the appellate court requires the evidence sought to be adduced to enable it to
pronounce judgment or for any other substantial cause", the bench comprising
Justices MR Shah and BV Nagarathna observed.

67. The true test, therefore is, whether the appellate court is able to pronounce judgment on
the materials before it without taking into consideration the additional evidence sought
to be adduced. (Para 4)
Summary: High Court dismissed an application for additional evidence filed by the
appellant to bring on record certain sale deeds and certified copy of the judgments
and awards passed in other land acquisition cases, which he con -tended, were
relevant for the purpose of determining the fair market value -Allowed - It was a case
of awarding of fair compensation to the land owner whose land has been acquired for
public purpose - There was no other material available on record to arrive at a fair
market value of the acquired land. Therefore, in the facts and circumstances of the
case, the High Court ought to have allowed the application for additional evidence.

68. • In Gopal Krushna Panda v. Utkal Grameen Bank, 2019 SCC OnLine Ori 34, the
issue of whether the appellate court can take into account the application filed
under Order 41 Rule 27 CPC for admitting additional evidence before hearing the
appeal was taken into consideration. The Court cited an earlier ruling in Sankar
Pradhan v. Premananda Pradhan (dead) and Others, (2015), in which it was
stated that under clause (1)(b) of Rule 27, additional evidence can only be admitted
where the appellate court “requires” it (i.e., finds it necessary).
• The court noted that the application for additional evidence can be taken into
consideration at the time of the hearing on the appeal. The court must make the
request, regardless of whether it is necessary for the court to be able to issue a
judgment or for any other substantial cause. Wherever the Court follows this
procedure, Rule 27(2) requires it to record its reasonings.

69. Saradhammal v. Sankaralingam,
2020 SCC OnLine Mad 5460; 2021 (1) CTC 830
“18 (b). The Trial Court has admitted Ex-B.6 as an additional document after
hearing both sides. It has given cogent reasons for admitting it in evidence. Ex.B.6
is the suit register extract of the previous proceedings in respect of the suit
property. Being a record of the Court, even without marking it, the Court is
empowered to call for the Court records and take judicial notice of the content.
There is no procedural error or illegality found in marking the additional document
in the appeal exercising the power under Order 41 Rule 27 of C.P.C.”

70. Judgment in appeal
RULE 30. Judgment when and where pronounced
RULE 31. Contents, date and signature of judgment.—
The judgment of the Appellate Court shall be in writing and shall state—
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or varied, the relief to which the
appellant is entitled, and shall at the time that it is pronounced be signed and dated by
the Judge or by the Judges concurring therein
RULE 32. What judgment may direct

71. VIMALA VS. GNANESWARAN & ORS, 2020 (5) CTC 549
“19. In Sathosh Hazari Vs. Purushotham Tiwari (deceased) by LRs 2001 3 SCC 179, the Hon'ble
Supreme Court in Paragraph No.15 has held as follows:
'' The appellate Court has jurisdiction to reverse or affirm the findings of the trial court. First appeal
is a valuable right of the parties and unless restricted by law, the whole case is therein open for
rehearing both on questions of law. The judgment of the appellate court must, therefore, reflect its
conscious application of mind and record findings supported by reasons, on all the issues arising
along with the contentions put forth, and pressed by the parties for decision of the appellate
court.
............... While reversing a finding of fact the appellate court must come into close quarters with
the reasoning assigned by the trial court and then assign its own reasons for arriving at a
different finding. This would satisfy the court hearing a further appeal that the first appellate
court had discharged the duty expected of it.''

72. “ 20. The said principles are reiterated in Madhukar and Others Vs. Sangram and Others (2001) 4
SCC 756 and also in Laliteshwar Prasad Singh and Other Vs.S.P.Srivastava (dead) through Legal
Representatives (2017) 2 SCC 415.
21. From the aforesaid decisions, it is clear that the Court of First Appeal must record its finding
only after dealing with all issues of law as well as the facts and with the evidence, oral as well
as documentary, led by parties. It is also clear that the First Appellate Court must give reasons in
respect of its findings, but in this case, as stated above, the First Appellate Court failed to consider
the evidence on record and therefore, the Judgment and Decree of the First Appellate Court are set
aside and the matter is remitted back to the First Appellate Court for fresh consideration, on the line of
the aforesaid decisions of the Hon'ble Supreme Court. Accordingly, these substantial questions of law
are answered.”

73. RULE 33. Power of Court of Appeal.—
The Appellate Court shall have power to pass any decree and make any order which ought to
have been passed or made and to pass or make such further or other decree or order as the
case may require, and this power may be exercised by the Court notwithstanding that the
appeal is as to part only of the decree and may be exercised in favour of all or any of the
respondents or parties, although such respondents or parties may not have filed any appeal or
objection [and may, where there have been decrees in cross-suits or where two or more
decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an
appeal may not have been filed against such decrees]:
[Provided that the Appellate Court shall not make any order under section 35A in pursuance
of any objection on which the Court from whose decree the appeal is preferred has omitted or
refused to make such order.]
Illustration A claims a sum of money as due to him from X or Y, and in a suit against both
obtains a decree against X. X, appeals and A and Y are respondents. The Appellate Court
decides in favour of X. It has power to pass a decree against Y.
RULE 34. Dissent to be recorded

74. Decree in appeal
RULE 35. Date and contents of decree
Judge dissenting from judgment need not sign decree.—
Provided that where there are more Judges than one and there is a difference of
opinion among them, it shall not be necessary for any Judge dissenting from the
judgment of the Court to sign the decree.
RULE 36. Copies of judgment and decree to be furnished to parties.—
Certified copies of the judgment and decree in appeal shall be furnished to the
parties on application to the Appellate Court and at their expense.
RULE 37. Certified copy of decree to be sent to Court whose decree
appealed from

75. Appeals from Orders (Order XLIII) and Sec 104 to 108:
• Order has been defined as “the formal expression of any decision of a civil court which is
not a decree” Thus an adjudication of a court which does not fall within the decree, is an
order. An appeal can be filed only against those orders which are made appealable.
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 involve the compensation for obtaining attachment
or injunction on insufficient grounds.
• Orders under the code which deal 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, Rule 1. However, appeals cannot be
filed based on any order enlisted in clause (a) and from any order passed in appeal under
Section 100.

76. APPEALS FROM ORDERS
1. Appeal from orders.—An appeal shall lie from the following orders under the provisions of section
104, namely: —
(a) an order under rule 10 of Order VII returning a plaint to be presented to the proper Court [except
where the procedure specified in rule 10A of Order VII has been followed];
* * * * *
(c) an order under rule 9 of order IX rejecting an application (in a case open to appeal) for an order to set
aside the dismissal of a suit;
(d) an order under rule 13 of Order IX rejecting an application (in a case open to appeal) for an order to
set aside a decree passed ex parte;
* * * * *
(f) an order under rule 21 of Order XI;
* * * * *
(i)an order under rule 34 of Order XXI on an objection to the draft of a document or of an
endorsement;
(j) an order under rule 72 or rule 92 of Order XXI setting aside or refusing to set aside a sale;

77. [ja) an order rejecting an application made under sub-rule (1) of rule 106 of Order
XXI, provided that an order on the original application, that is to say, the application
referred to in sub-rule (1) of rule 105 of that Order is appealable;]
(k) an order under rule 9 of Order XXII refusing to set aside the abatement or
dismissal of a suit;
(l) an order under rule 10 of Order XXII giving or refusing to give leave;
2* * * * *
(n) an order under rule 2 of Order XXV rejecting an application (in a case open to
appeal) for an order to set aside the dismissal of a suit;
[(na) an order under rule 5 or rule 7 of Order XXXIII rejecting an application for
permission to sue as an indigent person;]

78. (p) orders in interpleader-suits under rule 3, rule 4 or rule 6 of Order XXXV;
(q) an order under rule 2, rule 3 or rule 6 of order (XXVIII);
(r) an order under rule 1, rule 2 1 [rule 2A], rule 4 or rule 10 of Order XXXIX;
(s) an order under rule 1, or rule 4 of Order XL;
(t) an order of refusal under rule 19 of Order XLI to re-admit, or under rule 21 of
Order XLI to re-hear, an appeal;
(u) an order under rule 23 1 [or rule 23A] of Order XLI remanding a case, where an
appeal would lie from the decree of the Appellate Court;
2* * * * *
(w) an order under rule 4 of Order XLVII granting an application for review

79. Revision Petition Under S.115 CPC Not Maintainable Against Refusal
To Set Aside Ex-Parte Decree Under Order IX Rule 13:
Koushik Mutually Aided Coop. Housing Society v. Ameena Begum,
2023 SCC OnLine SC 1662
The Supreme Court recently held that a Civil Revision Petition under Section 115 of
the Code of Civil Procedure, 1908 (CPC) is not maintainable against the dismissal
of an application filed under Order IX Rule 13 of the CPC to set aside an ex-parte
decree
“When there is an express provision available under the CPC or any statute under
which an appeal is maintainable, by-passing the same, a Revision Petition cannot be
filed. It is needless to observe that in the absence of an appellate remedy, a revision
may be maintainable” the bench of Justice BV Nagarathna and Justice Ujjal
Bhuyan stated.

80. Ramachandran v. Balakrishnan,
2020 SCC OnLine Mad 28040; 2020 (6) CTC 843
“13. There seems to be a total flaw in the procedure adopted by the Courts below. Unfortunately,
the learned Trial Judge viz., The IInd Additional Sub Judge, Villupuram, disposed of an
application under Section 5 of the Limitation Act, as if it is an Application under Order
9 Rule 13 of the Code of Civil Procedure. Knowingly or unknowingly, the petitioners also
preferred an Appeal against the said order before the District Court instead of a Revision, before
this Court. Even before the Appellate Court, the question regarding the maintainability of the
Appeal was not raised. The Appeal was argued and the learned Principal District Judge also
disposed of the Appeal, as if it is one against an order made in an Application under Order 9 Rule
13, though the learned Principal District Judge had considered the reasons for the delay in the
course of the order. The manner in which the proceedings have been conducted shows that neither
the lawyers nor the Presiding Officers have bestowed any attention to the scope of the
proceedings before them.”

81. “14. It is fundamental principal of law that an order passed in a Section 5
Application is not an appellable order but a revisable order. Therefore, the very
appeal before the learned Principal District Judge was not maintainable. Unfortunately,
both the learned Principal District Judge and the counsel for the respondents overlooked
the fact that what was decided by the Trial Court was an application under Section 5 of
the Limitation Act, though it has been stated that it is an application under Order 9 Rule
13 of the Code of Civil Procedure in the fair order of the Trial Court. If I am to reject this
revision on the ground that the Appeal before the Appellate Court itself was not
maintainable, it will cause severe prejudice to the petitioners as the mistake was that of
the Court and not the petitioners. Since this Revision has been filed under Article 227 of
the Constitution of India, I treat this revision as one filed against the order of the Trial
Court made in IA No. 39 of 2013 and proceed to dispose it on merits.”

82. 1A. Right to challenge non-appealable orders in appeal
against decrees.—
(1) Where any order is made under this Code against a party and thereupon any
judgment is pronounced against such party and a decree is drawn up, such party
may, in an appeal against the decree, contend that such order should not have been
made and the judgment should not have been pronounced.
(2) In an appeal against a decree passed in a suit after recording a compromise or
refusing to record a compromise, it shall be open to the appellant to contest the
decree on the ground that the compromise should, or should not, have been
recorded.]
2. Procedure.—The rules of Order XLI shall apply, so far as may be, to
appeals from orders

83. Challenging compromise decree under O43 R1-A
Maintainable: Vipan Aggarwal v. Raman Gandotra,
(2023) 10 SCC 529
This Court in a judgment reported in ‘Banwari Lal V. Chando Devi (Smt.) (Through LRS.) & Anr.’ (1993) 1
SCC 581 held the question as to whether an aggrieved person against the compromise decree has a right to file
an application before the Court which granted the decree or an appeal in terms of Order 43 Rule 1A of the Code
of Civil Procedure, 1908 (for short, ‘the CPC’). It was held as under:-
“13. When the amending Act introduced a proviso along with an explanation to Rule 3 of Order 23 saying that
where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at,
"the Court shall decide the question", the Court before which a petition of compromise is filed and which has
recorded such compromise, has to decide the question whether an adjustment or satisfaction had been arrived at
on basis of any lawful agreement. To make the enquiry in respect of validity of the agreement or the compromise
more comprehensive, the explanation to the proviso says that an agreement or compromise "which is void or
voidable under the Indian Contract Act..." shall not be deemed to be lawful within the meaning of the said Rule.

84. In view of the proviso read with the explanation, a Court which had entertained the
petition of compromise has to examine whether the compromise was void or voidable
under the Indian Contract Act. Even Rule 1(m) of Order 43 has been deleted under which
an appeal was maintainable against an order recording a compromise. As such a party
challenging a compromise can file a petition under proviso to Rule 3 of Order 23, or an
appeal under Section 96(1) of the Code, in which he can now question the validity of the
compromise in view of Rule 1-A of Order 43 of the Code.”
The appellants had thus the right to avail either the remedy of appeal in terms of
Order 43 Rule 1A CPC or by way of an application before the court granting decree.
Therefore, the application filed by the appellants before the Court which granted the
decree cannot be said to be without jurisdiction.

85. RULES OF THE HIGH COURT MADRAS –
APPELLATE SIDE RULES, 1965
APPEALS AGAINST ORIGINAL DECREES OF SUBORDINATE COURTS
O. 4 R. 14.- Every memorandum of appeal from an original decree of a subordinate court
shall be accompanied by –
(1) as many clear authenticated copies on plain paper of the memorandum of appeal as there
are respondents to be served, together with another such copy for the Court record;
(2) the particulars for service of notices on the respondents set out in Form No. 2 of the
Schedule to these rules;
(3) the fees prescribed for service of such notices on the respondents;
(4) such other papers as are referred to in 41Order XLI of Order XLI-A of the Code.

86. Amendment Applications Not To Be Rejected Merely For
Delay: Life Insurance Corporation vs Sanjeev Builders Private
Limited | 2022 LiveLaw (SC) 729
A delay in applying for amendment alone is not a ground to disallow the prayer. Where the
aspect of delay is arguable, the prayer for amendment could be allowed and the issue of
limitation framed separately for decision. (Para 70)
All amendments are to be allowed which are necessary for determining the real question in
controversy provided it does not cause injustice or prejudice to the other side - The prayer
for amendment is to be allowed (i) if the amendment is required for effective and proper
adjudication of the controversy between the parties, and (ii) to avoid multiplicity of
proceedings, provided (a) the amendment does not result in injustice to the other side, (b) by
the amendment, the parties seeking amendment does not seek to withdraw any clear
admission made by the party which confers a right on the other side and (c) the amendment
does not raise a time-barred claim, resulting in divesting of the other side of a valuable
accrued right (in certain situations)

87. A prayer for amendment is generally required to be allowed unless
(i) by the amendment, a time barred claim is sought to be introduced, in
which case the fact that the claim would be time barred becomes a relevant
factor for consideration,
(ii) the amendment changes the nature of the suit,
(iii) the prayer for amendment is malafide, or
(iv) by the amendment, the other side loses a valid defence - In dealing with
a prayer for amendment of pleadings, the court should avoid a hyper
technical approach, and is ordinarily required to be liberal especially where
the opposite party can be compensated by costs. (Para 70)

88. Where the amendment would enable the court to pin-pointedly consider the dispute and would aid in rendering a more
satisfactory decision, the prayer for amendment should be allowed. - Where the amendment merely sought to introduce
an additional or a new approach without introducing a time barred cause of action, the amendment is liable to be allowed
even after expiry of limitation - Amendment may be justifiably allowed where it is intended to rectify the absence of
material particulars in the plaint - Where the amendment changes the nature of the suit or the cause of action, so as to set
up an entirely new case, foreign to the case set up in the plaint, the amendment must be disallowed. Where, however, the
amendment sought is only with respect to the relief in the plaint, and is predicated on facts which are already pleaded in
the plaint, ordinarily the amendment is required to be allowed - Where the amendment is sought before commencement
of trial, the court is required to be liberal in its approach. The court is required to bear in mind the fact that the opposite
party would have a chance to meet the case set up in amendment. As such, where the amendment does not result in
irreparable prejudice to the opposite party, or divest the opposite party of an advantage which it had secured as a result of
an admission by the party seeking amendment, the amendment is required to be allowed. Equally, where the amendment
is necessary for the court to effectively adjudicate on the main issues in controversy between the parties, the amendment
should be allowed.

89. THANK YOU!