ES क्या किसी आज्ञप्ति के विरूद्ध पक्षकार एक अधिकार के रूप में अपील प्रस्तुत कर सकता है? क्या एड पक्षीय पारित मूल आज्ञप्ति के विरूद्ध अपील हो सकती है? समझाइए।

Appeal from an Original Decree and Ex-Parte Decree

1. Appeal from an Original Decree

An appeal is a legal remedy that allows an aggrieved party to challenge a decree or judgment in a higher court. The right to appeal is not inherent but must be provided by law.

(i) Right to Appeal from an Original Decree (Section 96 CPC)

• Section 96(1) of the Code of Civil Procedure (CPC), 1908 states that an appeal lies from a decree passed by a court exercising original jurisdiction to a higher court.
• An appeal is allowed when a party is aggrieved by the decision of the trial court.

(ii) Cases Where Appeal is Allowed

1. First Appeal (Section 96) – Lies as a right against an original decree passed by a civil court.
2. Second Appeal (Section 100) – Lies only on a substantial question of law to the High Court.

(iii) Cases Where No Appeal Lies (Section 96(3))

• No appeal lies if the decree is passed with the consent of both parties.
• No appeal lies in petty cases where only a small sum is involved, as specified by law.

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2. Appeal from an Ex-Parte Decree

An ex-parte decree is a decree passed without hearing the defendant due to his non-appearance in court.

(i) Right to Appeal Against an Ex-Parte Decree (Section 96(2) CPC)

• Section 96(2) CPC allows an appeal against an ex-parte decree just like an ordinary decree.
• The appellate court can review whether the trial court was justified in passing the decree without hearing the defendant.

(ii) Alternative Remedies Against an Ex-Parte Decree

Apart from an appeal, a defendant has the following remedies:

1. Application for Setting Aside Ex-Parte Decree (Order IX Rule 13 CPC)

   • The defendant can apply to set aside the decree if he proves that:
     • He was prevented by sufficient cause from appearing.
     • The summons was not duly served.
   • If the court is satisfied, it can reopen the case and hear the defendant.

2. Filing a Review Petition (Section 114 CPC, Order XLVII CPC)

   • If there is an error apparent on the face of the record, the defendant may seek a review of the judgment.

3. Filing a Regular Appeal (Section 96(2) CPC)

   • Instead of setting aside the decree, the defendant can directly file an appeal in the appellate court.

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3. Conclusion

• An appeal lies as a right against an original decree, except in cases of consent decrees or small claims.
• An ex-parte decree can also be appealed, but the defendant has the alternative remedy of filing an application to set aside the decree.