Bailabel Type : bailable

Description

Section 97 of the Code of Civil Procedure (CPC) provides for an appeal from a final decree in cases where there was no appeal filed against the preliminary decree. This provision ensures that a party can challenge the final decree, even if they missed the opportunity to challenge the preliminary decree in the first instance.

Key Provisions of Section 97:

1. Context of Preliminary and Final Decrees:

   • In certain cases, a suit may involve two stages: a preliminary decree and a final decree.
   • A preliminary decree sets out the foundation or the framework of a decision (for example, determining the rights of the parties), while the final decree deals with the enforcement or implementation of that framework (e.g., actual partition of property, calculation of money to be paid, etc.).
   • In many cases, the final decree cannot be passed until the preliminary decree is executed or completed. Therefore, parties usually have the option to appeal both the preliminary decree and the final decree.

2. Right to Appeal Under Section 97:

   • Section 97 allows an appeal from the final decree, even if the party has not appealed the preliminary decree.
   • Normally, a party would have the opportunity to appeal a preliminary decree if they felt the decision was wrong, but if they missed that opportunity, they still have the right to challenge the final decree.
   • This provision applies specifically when the preliminary decree has been passed and no appeal has been filed against it, but the party still wishes to challenge the final decree based on their dissatisfaction with the outcome or any aspect of the earlier stage.

3. Application of Section 97:

   • If a party fails to challenge the preliminary decree, it does not bar them from challenging the final decree. This provision provides them with a second chance to present their case in appeal against the final judgment.
   • The final decree may not be automatically final if the party feels that the trial court made an error during the earlier preliminary proceedings that directly affect the outcome of the final decree.

4. Scope of Appeal:

   • The appellate court will typically hear the appeal regarding the final decree and can look into the preliminary decree if it is relevant to the final judgment.
   • However, the appeal of the final decree is not necessarily a review of the preliminary decree but may still involve the underlying issues. The appellate court can:
     • Confirm the final decree.
     • Modify the final decree, including any adjustments related to the preliminary decree.
     • Set aside the final decree and send the matter back for further proceedings or reconsideration if there was a flaw in the preliminary decree that impacted the final decision.

5. Final Decree and Preliminary Decree Connection:

   • Even though the preliminary decree has not been appealed, Section 97 allows the court to review the final decree in its entirety.
   • This ensures that the final decree is not unjustly enforced if it is based on a preliminary decree that is erroneous or flawed.

Punishment

Section 97 does not specifically provide for punishments or penalties. However, there are some legal consequences related to this provision:

1. Failure to Appeal Preliminary Decree:

   • Non-appeal of a preliminary decree may lead to the preliminary decree being binding and final on the parties unless the final decree is appealed. If the appeal is only focused on the final decree, the preliminary decree remains intact unless it is found to be fundamentally flawed.

2. Dismissal of Appeal:

   • If the appellate court finds that the final decree is based on a valid preliminary decree, the appeal may be dismissed.
   • If the final decree is appealed after the preliminary decree has been passed, and if the preliminary decree is unchallenged, the appellate court may still pass a decision based on the final decree while considering the preliminary decree's effect.

3. Costs and Legal Responsibility:

   • The court may impose costs on the party filing the appeal if it is determined that the appeal is frivolous or without merit, including in cases where the preliminary decree was not appealed in the first place.
   • Costs may also be awarded in favor of the successful party in the appeal.