Appeal can be defined as judicial examination of the decision by a higher court of the decision of the inferior court.Section 96-99 and Rules 23 to 33 of Order 41 enumerate the powers of an appellate court while hearing first appeals. Further Section 100-103, 107-108 and Order 42 deals with Second Appeal.

Every person has been given right the of appeal against decree. However, right of appeal is not an inherent right. Rather it can only be availed where it is expressly granted by law. Appeal lies against a decree and not against a judgment. Rights of appeal are substantive right and they are not mere matters of procedure. Further right of appeal is governed by the law prevailing at the date of the suit and not by law that prevails at the date of the decision or at the date of filling of the appeal. An appeal lies under section 96 CPC only from a decree because the decree marks the stage at which the jurisdiction of the court which the appeal is made begins. As such unless a decree is drawn up, no appeal lies from a mere finding, but if the finding amount to a decree, an appeal would lie.


Section 107 and 108 are the General Provisions relating to appeal.

Section 107 reads as follows:

(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.[1]

* Section 107 (1)(a) and Rule 24 of Order 41 enables the appellate court to dispose of a case finally where the evidence on record is sufficient.

* Section 107(1)(b) deals with the power of remand [ Send back].

Rule 23 of Order 41 states that 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, with 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.

Rule 23 A as inserted by the Amendment Act, 1976 enables the Appellate Court to remand a case where the lower court has decided on merits but the appellate court considers such remand in the interest of the justice.


  1. The suit must have been disposed of by the trial court on a preliminary point.
  2. The decree under appeal must have been reversed.
  3. Other Grounds (Rule 23 A): Rule 23 A of Order 41 enables the Appellate Court to remand a case where the lower court has decided on merits but the appellate court considers such remand in the interest of the justice.

* Section 107(1)(c) and Rule 25-26 gives appellate court the power to frame issues and refer them for trial.

Where the lower court has omitted to frame any issue or try any issue or to determine any question of fact which is important for the right decision, then the Appellate court may frame issues and refer them for trial to the lower court and shall direct the court to take the additional evidence required. The lower court shall try such issues and shall return the evidence and the findings within the time fixed by the Appellate court.

*Section 107(1)(d) is an exception to the general rule which empowers an appellate court to take additional evidence or require such evidence to be taken subject to the conditions laid down in Rule 27 of Order 41.


  1. Improper refusal of lower court to admit evidence.
  2. Discovery of new evidence.
  3. Requirement by Appellate court.

* Rule 33 of Order 41 empowers an Appellate court to modify decree.


  1. Duty to decide appeal finally.
  2. Duty not to interfere with decree for technical errors.
  3. Duty to re-appreciate evidence.
  4. Duty to record reasons etc…

Section 108 of Code of Civil Procedure reads as follows:

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.[2]


Shantilal v Gujarat Electricity Board: Three writ petitions were filed in the High Court. In two petitions, vires of statutory provisions were challenged. After the decision of the High Court, the matters were taken to the Supreme Court which remanded the cases to the High Court with a direction to decide vires of the provision. The High court refused to try that issue in the third matter. The Apex Court held that the High Court was bound to decide vires in all matters.[3]

Purapabutchi Rama v PurapaVimalakumari: In this case it was stated that no remand can be ordered by the Appellate court under Rule 23 unless the decision of the lower court on the preliminary point is reversed in appeal.[4]

CWT vs. AluminiumCorpn. Ltd: The High Court of Calcutta expressed doubts about the Supreme Court to remand the case. When the matter reached the Supreme Court again, the Apex Court observed that the High Court clearly exceeded its jurisdiction in examining the competence of the Apex Court to remand the case.[5]

ShivajiraoNilangekarPatil v. Mahesh MadhavGosavi: In this case the Supreme Court stated that the basic principle of admission of additional evidence is that the person seeking the admission of additional evidence should be able to establish that with the best efforts such additional evidence could not be adduced at first instance. Secondly the party affected by the admission of additional evidence should have an opportunity to rebut such additional evidence. Thirdly the Additional evidence should be relevant for the determination of the issue.[6]

K.R. Mohan Reddy v Net Work Inc.: In this case the Supreme court stated that clauses (a), (aa) and (b) of Rue 27 (1) refer to three different situations. For exercising jurisdiction thereunder, the Appellate court must record a finding that one or other conditions of Rule 27 (1) is satisfied.[7]


As stated above section 107 and 108 are general provisions relating to appeal. Section 107 deals with the powers of the appellate court in the cases of appeal. Whereas Section 108 of Code of Civil Procedure deals with the procedure in appeals from appellate decrees and orders.

The appellate court should not exercise the power of remand very lightly, As far as possible it should dispose of the appeal finally unless remand is imperative. The correctness of an order of remand if not questioned at the time when it was made by filing an appeal, nevertheless can be challenged later on in an appeal arising out of the final judgment and decree.

When a party is unable to produce the evidence in the trial court under the circumstances mentioned in the Code, he should be allowed to produce the same in the appellate court. Even though this power is discretionary, but it can be exercised and it should be exercised in sound judicial principles and in the interest of justice.

[1]Code of Civil Procedure, Sec. 107.

[2]Code of Civil Procedure, Sec. 108.

[3]Shantilal v Gujarat Electricity Board (1971) 3 SCC 854.

[4]Purapabutchi Rama v PurapaVimalakumari AIR 1969 AP 216 at p. 220.

[5]CWT vs. AluminiumCorpn.Ltd (1973) 3 SCC 643: (1972) 1 SCR 484.

[6]ShivajiraoNilangekarPatil v. Mahesh MadhavGosavi (1987) I SCC 227.

[7]K.R. Mohan Reddy v Net Work Inc AIR 2008 SC 579.

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