INDIA Law and Practice Contributed by: Anuradha Mukherjee, Omar Ahmad, Vikram Shah and Soumya Dasgupta, Cyril Amarchand Mangaldas
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 ques- tion 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 satisfied that the pending case involves a question on the validity of a provision, the determination of which is necessary for the dis- posal of the case, and if the referring court feels that such act is invalid or inoperative 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 sub- ordinate court, the High Court can call for the record of such case and pass such orders as it thinks fit.
9.4 Enforcement Mechanisms of a Domestic Judgment The enforcement of a domestic judgment can be sought by the decree holder under Order XXI of the CPC. The modes of execution include: • delivery of the property decreed; • attachment or sale of the judgment debtor’s property; • arrest and detention of the judgment debtor; • the appointment of a receiver; • recovery by way of garnishee orders – ie, from a third party who may owe amounts to the judgment debtor; and • any other way as required in terms of the relief granted. 9.5 Enforcement of a Judgment From a Foreign Country A foreign judgment can be directly enforced under the CPC if it is passed by a court locat- ed in a “reciprocating territory” – ie, one that is declared as such by the central government by notification in the official gazette. Such a judg- ment would be executed in India in the same manner as if it had been passed by an Indian court. If the judgment is from a court that is not in a “reciprocating territory”, then the decree holder will be required to file a suit against the judg- ment debtor, where the decree will be used as evidence for substantiating its claim.
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