CPC-VII-Appl. Ref. etc.ppt

Appeal,
Reference,
Review &
Revision
(Parts VII & VIII C.P.C.)

Appeals (Part VII)
From Original Decrees (S.96):-
Appeal lies from:-
o Original Decrees (including) Ex-parte Decree,
o But not from consent Decrees;
From Final Decrees (S.97):-
o No Challenge to Preliminary Decree in Appeal
against Final Decree;

Powers of Appellate Court
(S.107)
• To determine case finally;
• To remand a case;
• To Frame Issues & refer for trial;
• To Take or require to take additional
evidence;
Appeal is treated as a continuation of
the suit

Second Appeals
• Second Appeal to High Court (S. 100);
• From original decree, First Appeal on
points of law and facts, and Second
Appeal only on points of law before
High Court, subject to power U/S. 103;
• No Second Appeal if Subject matter is
money upto RS. 25,000/-;

Appeals From Orders (S. 104)
Orders generally cannot
be appealed against,
excepting the
Appealable ones;
But no second appeal
from Appealable
Orders;

Appeals From Orders
Some Appealable Orders: (S. 104 & O.
XLIII)
• Allowing or refusing (i) temporary
injunction, (ii) appointment of Receiver;
• Allowing or Rejecting an application
setting aside dismissal of a suit, or an
exparte Decree;
• Refusing to set aside abatement of a suit;
• No second Appeal from an Order in
Appeal under this section.[s.104(2)]

Appeals to Supreme Court
(S.109)
• If High Court certifies involvement
of a substantial question of law of
general importance, and,
• In its opinion, the question needs
decision by Supreme Court;
Supreme Court’s own powers
U/Art. 136, or under SC Rules
unaffected (S.112);

Reference, Review & Revision
(Part VIII)
Reference (S.113):-
By Trial Court to High Court-
 For opinion;
 Where validity of any Act,
Ordinance or Regulation or its
provision is doubtful;
 Case to be disposed off in
conformity with decision of High
Court (O.XLVII,R.3);

Review & Revision
Review:- Of Judgement in the same Court,
within 30 days (S. 114 & O. O.XLVII);
• Normally introduction of new matter /
evidence not allowed;
Revision:- Before Superior Court within 90
days on jurisdictional irregularity (Ss. 115 &
115A);
 Effect of 2002 amendment has severely
curtailed Revisional Jurisdiction;

Suits by & against
Minors / Persons
of unsound mind
(O. XXXII C.P.C.)

Suits by/ against minors-I
Minor – Person not having
attained majority in terms of S. 3
of Indian Majority Act;
To sue by next friend – if plaintiff
(R.1);

Defending Minor in a Suit-I
 Minor to be defended in a suit by
a Guardian (R.3) :-
 Court to appoint Guardian;
 Guardian to have no interest
adverse to minor;
 Any person may be appointed
Guardian by Court if there is no
declared Guardian or other natural
Guardian for minor ;

Defending Minor in a Suit-II
 Qualifications to be appointed Guardian
for Suit (R. 4):-
 Person to be of sound mind;
 Must be a major;
 Has no interest adverse to minor’s interest ;
 Must give consent in writing;
 Court’s own an officer may be appointed if no
one else is available, fit or willing to be
Guardian;

Limitations of the Guardian -I
 Barred from receiving money of minor
(R.6):-
o By way of compromise;
o Under decree or order in favour of minor;
o Court may permit Guardian / next friend
to receive money / property subject to
security;
o No security required from manager of
HUF or a minor’s parent;

Limitations of the Guardian -II
 Barred from compromising suit (R.
7):-
o Leave of Court to be obtained;
o Affidavit and certificate required
regarding minor’s benefit;
o Court may examine truth regarding
minor’s benefit;
o Agreement / compromise made without
Court's leave voidable;

Limitations of the Guardian -III
 Guardian/next friend barred from retirement
(R. 8):-
o Procurement of another person necessary;
 Removal of next friend (R. 9):-
o Where interest is adverse;
o If closely connected with a defendant;
o If does not do duty;
o If leaves India etc. (1);
o If authorised Guardian seeks to be himself
appointed;

When the child is a “man”-I
 Course by plaintiff on attaining majority
(R. 12);
 Minor to elect himself;
 Next friend stands discharged after notification;
 Repudiation by minor co-plaintiff (R. 13);
o Court may strike out minor co-plaintiff if found
unnecessary;
o May make him defendant if a necessary party;
o Next friend / co-plaintiff and defendant to be
notified;

The child is a
“man”-II
 Unreasonable or
improper Suit (R.
17):-
o On attaining majority
plaintiff may apply
for dismissal on
above grounds;
o Notice required upon
all;
 All the above
provisions
pertaining to
minors apply
almost
exactly to
persons of
unsound
mind (R. 15);

CPC-VII-Appl. Ref. etc.ppt

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