• Question regarding appeal, whether under Section 96 or 104

Hi Ajay,

before I talk to u on phone can you please go through this email .

question regarding appeal against appealable order (Ex petition judgement on application U/O 21 r99)


 ORDER
“I.A.No.7 filed by the objector under Order 21 Rule 99 read with Section 151 of CPC in hereby allowed. 
The D.Hr is hereby directed to handover the actual vacant possession of the property obtained possession through this court in favour of the objector within 60 days from the date of this order. 
The objector is also entitled for the damages to be ascertained separately on the basis of the petition filed by the objector against the decree holder for illegal possession of the property of the objector from the date of taking possession till re-delivery of possession of the property in favour of the objector. 
Draw decree accordingly. 

This order is an appealable order and consider as Deemed decree.

question is Appeal against this order is only under section 104 as its Deemed decree 


covers under 
"Section 104: Order from which appeal lies.-
(1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders:-

4[(ff) an order under section 35A ;] 
( COMPENSATION GIVEN FOR FRAUD/WRONG CLAIMS )

Question 1 : any chance it can appeal under S.96 which is only for Original decree not for deemed decree 

question 2 :
what is time limit for appeal ?

60days -- as in the order or 90 days ---like normal


question 3 .

Can they admit appeal without condonation of delay application as lodged after 98 days .



question 4 

is appeal is maintanable as appealed in wrong provision , under s.96 instead of S. 104 


question 5

S.96 for RFA 
S.104 for MFA / ???



regards
Venu
Asked 4 years ago in Family Law
Religion: Hindu

3 answers received in 2 hours.

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12 Answers

Full Bench of Andhra Pradesh in Gurram Seetharam Reddy v. Smt. Gunti Yashoda and another (AIR 2005 AP 95); wherein it is observed:

35. When Section 96 C.P.C. specifically provides for appeals against decrees, and sub-rule (4) of Rule 58 of Order 21 directs that the order passed under sub-rule (3) thereof shall have the force of a decree, there hardly exists any basis to deny such characteristics to such an order. An interpretation to the contrary would have the effect of setting at naught, the intention of the Parliament in attributing characteristics of a decree to an order. In view of a clear mandate under sub-rule (4) of Rule 58, an order passed under sub-rule (3) thereof, partakes a character of a decree for all practical purposes, more so, in the context of availing the remedy of appeal. Same reasoning holds good for the orders passed under Rules 98 and 100 of Order 21 C.P.C. Hence, there does not exist any justification to treat the same as different, in any way from decrees, at least in the context of deciding the forum and provision for appeal. The question as to what nomenclature is to be given to the appeals, needs to be dealt with by the High Court or the District Courts, on administrative side.

2) file appeal against said order in 90 days

3) application for con donation of delay has to be filed

Ajay Sethi
Advocate, Mumbai
87901 Answers
6207 Consultations

5.0 on 5.0

1. if the order is one passed under s.35A of CPC, then appeal will lie u/s 104 of CPC i.e. appealable orders and not s.96 of CPC which is first appeal from original decree

2. under Article 116 of the Schedule to Limitation Act, if the appeal is to be filed in High Court then limitation period is 90 days and if appeal is to be filed in any other court then 30 days, from date of the order

3. the period of 60 days mentioned in the order is the period for compliance of restoring possession in favour of objector. The decree holder will be affected if the possession is taken from him and restored to objector. Therefore he will need to file appeal before expiry of this 60 days period

4. the condonation of delay application will have to be decided first before the appeal can be taken up for admission and hearing

5. if it is brought to the notice of the court that the appeal is filed under a wrong provision, then courts are liberal enough to convert the appeal as being filed under the correct provision. This is because if the appeal is filed under an incorrect provision, the court can always grant liberty to the appellant to withdraw his appeal and file under the correct provision. This would take unnecessary time, as the appellant would again file the appeal under the right provision and then again serve the respondents. Therefore some judges allow the conversion on mere oral application and also allow consequential amendments to be made in appeal without requiring re-verification. This practice is based on the principle - that the rules of law are a means to an end and NOT an end to the means

6. answer to Q.5 - in my view it should be appeal u/s 104 - ie appeal from appealable orders

Yusuf Rampurawala
Advocate, Mumbai
6878 Answers
79 Consultations

5.0 on 5.0

Dear Client,

Appeal will lie u/s 96 CPC, order dose not fall under ambit of sec 104 CPC.

Inter court appeal 60 days. To High Court 90 days.

Appeal not maintainable without condonation grant.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

1. Appeal will only be filed under 104

2. 90 days

3. Delay has to be condoned first

4. Appeal is not maintainable if filed under wrong section.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

Hi,

The appeal can be done in section 104. The condonation of delay can be allowed if you convince the reasons of delay.

Ganesh Singh
Advocate, New Delhi
6646 Answers
16 Consultations

4.5 on 5.0

Question 1 : any chance it can appeal under S.96 which is only for Original decree not for deemed decree

Appeal is provided under Section 96 of the CPC, which says that except as provided in CPC or any other law for timbering in force, an appeal shall lie from any decree passed by court exercising Original Jurisdiction to appeal Court authorized to hear the appeal from the decision of the Court i.e.

Section 96 makes it clear that no appeal lies from appeal decree passed by the Court with the consent of the parties. However, an appeal may lie fro original decrees which is passed exparte i.e. without hearing of the parties

question 2 :

what is time limit for appeal ?

60days -- as in the order or 90 days ---like normal

90 days before high court

question 3 .

Can they admit appeal without condonation of delay application as lodged after 98 days .

When an appeal is barred by limitation and an application is made under S. 5 of the Limitation Act for condonation of the delay along with the memorandum of appeal, until the application under S. 5 is allowed, the appeal cannot be filed or admitted at all. In other words, till a favourable order is made on the application under S. 5 the appeal is non est. In that event the question of rejecting a memorandum of appeal does not arise at all at that stage.

question 4

is appeal is maintanable as appealed in wrong provision , under s.96 instead of S. 104

Under section 104 - Right to challenge non-appealable orders in appeal against decrees:

Where any order is made under the Code against a party and thereupon any judgment is pronounced against such party and a decree is drawn up, such party may, in an appeal against the decree, contend that such order should not have been made and the judgment should not have been pronounced.

question 5

S.96 for RFA

S.104 for MFA / ???

Appeal under section 104 CPC is maintainable

T Kalaiselvan
Advocate, Vellore
78059 Answers
1543 Consultations

5.0 on 5.0

Kindly clarify whether application made for condonation of delay ?

2) if application made then only court would condone delay after considering your objections

3) any amendment to be made in pleadings has to be done by making application fir amendment under order 6 Rule 17

4) notice has to be issued to you

5) orders have to be passed after hearing both parties

6) if this has not been done you should file appeal against order passed by HC

Ajay Sethi
Advocate, Mumbai
87901 Answers
6207 Consultations

5.0 on 5.0

Appeal is admitted

You can raise all your objections in your reply to appeal

You can inform court that appeal is filed under wrong provision, delay is not considered in filing appeal, etc under the head of preliminary objections before explaining your side of the story by way of reply to appeal

Honestly these objections will not help

A delay of 39 days is not an unconsciousnable delay so as to dismiss the appeal. At the highest court can award you some costs

Also appeal filed under wrong provision will also not be helpful. As court can use its inherent powers under 151 of cpc to allow conversion of appeal as being filed under correct provision of law

Think logically - what different will the appellant say in the appeal under right provision than what is being said by him in present appeal filed under some wrong provision? His complain will remain the same. Only the form may differ. That wont change the substance of his grievance in filing an appeal

So instead of thinking too much on these technical objections, focus on all the points on merits which will lead to dismissal of appeal

Take a pragmatic and practical approach

Yusuf Rampurawala
Advocate, Mumbai
6878 Answers
79 Consultations

5.0 on 5.0

Under C.P.C. third type of appeal is provided under Order 21, Rule 103 by virtue of which orders passed on the applications for dispossession of third party in execution of decree have been conferred the status of decree and made appealable. The rule is quoted below:

-0.21, R. 103 “Where any application has been adjudicated upon under Rule 98 or Rule 100, the order made thereon shall have the same force and be subject to the same condition as to an appeal or otherwise as

if it were a decree".

In your case it will be under sec 96 CPC. and u/s 104 separate orders are appealable.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

The errors he has committed may be highlighted in your counter to his memo of appeal.

You can also attach the documentary proofs for all those contents he has presented in his memorandum of appeal to prove that they are false.

T Kalaiselvan
Advocate, Vellore
78059 Answers
1543 Consultations

5.0 on 5.0

Order 21, Rule 103, Civil Procedure Code:

Any party not being a judgment-debtor against whom an order is made under Rule 98, Rule 99 or Rule 101 may institute a suit to establish the right which he claims to the present possession of the property; but, subject to the result of such suit (if any), the order shall be conclusive.

Therefore under the above provision you may proceed with the further steps in this regard.

If this document is correct

Q.1 what is third type appeal for Order under O21 R103

Q.2 If Not RFA then which type appeal provision lies ?

You can file a suit accordingly for the reliefs, against which you are aggrieved

T Kalaiselvan
Advocate, Vellore
78059 Answers
1543 Consultations

5.0 on 5.0

Hi,

You may raise all the objections which bring the case in your favour.

Ganesh Singh
Advocate, New Delhi
6646 Answers
16 Consultations

4.5 on 5.0

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