INDIA Law and Practice Contributed by: Anuradha Mukherjee, Omar Ahmad, Vikram Shah and Soumya Dasgupta, Cyril Amarchand Mangaldas
where the decree will be used as evidence to sub- stantiate its claim.
An appellate court shall have the power to finally determine a case, to remand a case, to frame issues and refer to trial, and to take additional evidence. An appeal can also be made to the Supreme Court under Section 109 read with Order XLV of the CPC against a judgment, decree or final order passed in a civil proceeding of a High Court. However, an appeal to the Supreme Court will only lie once the High Court certifies that the case involves a substantial question of law of general importance, and if the High Court is of the opinion that the question needs to be decided by the Supreme Court. 10.3 Procedure for Taking an Appeal Procedure Appeals are made in the form of a memorandum, which is to be signed by the appellant or its pleader, and must be accompanied by a copy of the challenged decree. It should include the grounds of objection. If the appeal is against a money decree, the appellant may have to deposit the amount in dispute or furnish security of such amount, as the court may direct. The mere filing of the appeal does not by itself result in a stay of the operation of the challenged decree. A separate application seeking a stay of the impugned decree has to be made; the appellate court may stay the operation of the decree upon sufficient cause being shown warranting stay. Once an appeal is filed, the appellate court shall fix a date for the hearing of the appeal, and the appel- lant will be required to serve notice on the respondent regarding the appeal and the date fixed for its hear- ing. A notice of the appeal shall also be sent by the appellate court to the court that passed the impugned decree. Time Period for Filing an Appeal Under the ILA, the periods of limitation to file an appeal are as follows: • 90 days for an appeal from a subordinate court to the High Court; • 30 days for an appeal to any other court; and
10. Appeal 10.1 Levels of Appeal or Review to a Litigation Appeal Mechanism
Pursuant to an original decree passed by a court, an aggrieved party can file an appeal against specific kinds of orders, which is considered a “first appeal”. Thereafter, a “second appeal” can also lie in certain cases on a substantial question of law. A party may also file a special leave petition under Article 136 of the Constitution of India before the Supreme Court, challenging any order/judgment passed. Reference, Review and Revision A court can also refer a case pending before it to the High Court for its opinion, if the referring court is sat- isfied that the pending case involves a question on the validity of a provision, the determination of which is necessary for the disposal of the case, and if the referring court feels that such act is invalid or inopera- tive but has not been declared so by the High Court or Supreme Court. This is referred to as “reference”. An aggrieved party can also seek “review” of a decree or order from which no appeal is allowed, or where appeal is allowed but has not been preferred. The review is sought before the same court that passed the decree or order. High Courts have also been vested with the power of revision. In cases where no appeal is provided for and a question is raised regarding the improper exercise of jurisdiction by a subordinate court, the High Court can call for the record of such case and pass such orders as it thinks fit. 10.2 Rules Concerning Appeals of Judgments Please see 10.1 Levels of Appeal or Review to a Liti- gation .
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