General Provisions Relating to Appeal (Section 107 – 108)

Section 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.


Section 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.


IMPORTANT CASE LAWS

1. Applicability of Principle of severability in appeal

Bolin Chetia v. Jogadish Bhuyan, (2005) 6 SCC 81: “……..the appellate court possesses power to admit or reject the appeal in its entirety, as also, to admit the appeal in part in regard to a particular part of a decree and dismiss it in part if the two parts are severable………”


2. A short note on Appeal

Bolin Chetia v. Jogadish Bhuyan, (2005) 6 SCC 81:The word “appeal” is not found defined either in the Act or in the Code of Civil Procedure, 1908 (hereinafter “the Code” for short). In its natural and ordinary meaning an appeal is a remedy by which a cause determined by an inferior forum is subjected before a superior forum for the purpose of testing the correctness of the decision given by the inferior forum. The right of appeal is a substantive and valuable right of any appellant who is normally a person aggrieved by the impugned decision. According to sub-rule (1) of Rule 11 of Order 41 of the Code, the appellate court may, after sending for the record, if it thinks fit to do so and after appointing a day for hearing the appellant, dismiss the appeal without sending notice to the court from whose decree the appeal is preferred and without serving notice on the respondent. Though the court does not assign a particular name to the proceedings held on such a date of hearing or such a step in the procedure of hearing the appeal, in judicial circles, it is generally called a “motion hearing” or “hearing on admission” or “preliminary hearing”. Ordinarily a court of appeal, and specially a court of first appeal, would prefer to have the records of the lower court before it. But it is not always necessary. An appeal may raise a question of law alone and the appellate court may form an opinion at the preliminary hearing whether the appeal deserves to be heard bi parte on that question of law without sending for the record of the lower court. A first appeal is generally open for hearing on questions of law and fact, both, and the appellate court possesses power to make all such orders as the original court could have made. The discretion conferred on the appellate court to dismiss the appeal at its threshold is a judicial discretion and cannot be exercised arbitrarily or by whim or fancy. The appellate courts exercise the discretion in favour of summary dismissal sparingly and only by way of exception. However, that does not tantamount to saying that the appellate court does not possess the power to dismiss an appeal summarily and at the threshold. Such power to summarily dismiss can be exercised, depending on the facts and circumstances of a given case, before issuing notice to the respondent and even before sending for the record of the inferior forum. Similarly, the appellate court possesses power to admit or reject the appeal in its entirety, as also, to admit the appeal in part in regard to a particular part of a decree and dismiss it in part if the two parts are severable. Once the appeal is admitted, the appellate court may not, except in very exceptional cases, restrict any grounds on which the appeal should be heard. Where the appellate court exercises its discretion in favour of dismissing the first appeal without issuance of notice to the respondent, it is expected that the reasons for doing so are placed on record. Such recording of reasons is necessary where the order of summary dismissal is open to challenge before a superior forum. This rule of practice does not apply to the Supreme Court as it is the final court and as no appeals lie against the decisions of this Court, including a decision by which an appeal is summarily dismissed.”


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