APPEAL AND RESTITUTION

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Appeal is statutory right. It can be exercised only when it is provided by law. It is not a fundamental right.

Appeal From Original Decree:-

  1. Every decree is appealable u/s 96 (1).
  2. Appeal can be filed against ex-parte decree u/s 96 (2).
  3. No decree can be filed against consent decree u/s 96 (3).

Appeal Against Decision of Court of Small Cause U/S 96 (4): –

  1. Value of suit less than 10,000/-  ➞  No appeal allowed.
  2. Value of suit more than 10,000/- ➞ Appeal is allowed.
  3. Appeal from question of law than value of suit will not to be seen.

SECOND APPEAL

SECTION 100

  1. Generally second appeal is not allowed.
  2. It is allowed only when substantial question of law is involved.
  3. Can file only in High Court.

Substantial Question of Law: –

It has to be interpreted liberally. Substantial question of law can be;

  1. Any question which is of general public importance.
  2. Any such issue which has yet not been decided by the superior court i.e. high court or Supreme Court. (Doctrine of precedence is not applicable).
  3. Any question of law which materially affects the merits of the case i.e. if that issue had been decided differently by the court then it would have changed the decision of the suit. For instance disallowing the evidence which admissible or allowing an inadmissible evidence, putting burden upon wrong party etc.
  4. Generally court will not allow new ground to be raised in second appeal u/s 101.

Power of Appellate Court:-

  1. Power to set aside the decree and remand the matter back to trial court.
  2. Frame the new issue and remand the issue to the trial court.
  3. Set aside the decree and decides the case itself on the basis of evidence of trial court.
  4. Power to take additional evidence O41 R27.

Note: – Generally appellate court will not take additional evidence.

Exception: –

  1. Admissible evidence were disallowed by the trial court.
  2. Some evidence could not have been produce even by due diligence.
  3. Sometimes it may suo-motto call a witness or a documents in the interest of justices.

RESTITUTION

The process through which a person has to be placed in same situation in which he was before the execution of decree is known as restitution.

Essential/ Guidelines:-

  1. Quantum of restitution depends upon quantum of setting-aside, variation etc.
  2. Restitution is equitable right, it depends upon principle of equity and justice.
  3. It does not create a new right. It regulates the existing rights.
  4. Section 144 is not exhaustive upon restitution.
  5. Order during restitution is deemed decree.
  6. Once application for restitution is decided, subsequent application is barred upon the principle of res-judicata.
  7. Limitation period is 12 year u/a 136 of limitation act, 1963.
  8. Bo separate suit can be filled for restitution. The application for restitution has to be files in decree court.
  9. Act of court shall not prejudice any one.

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