Bailabel Type : bailable

Description

Section 108 of the Code of Civil Procedure (CPC) lays down the procedure that governs appeals from appellate decrees and orders. It deals with the situation where an appeal has already been made to a lower appellate court, and a further appeal is made to a higher court. This section is crucial in determining how appeals should be handled when a decision has already been passed by an appellate court.

Key Provisions of Section 108:

1. Appeals from Appellate Decrees and Orders:

   • Section 108 governs the appeals that are filed from the decree or order passed by an appellate court, not the original decree or order made by the trial court.
   • The section applies when a decision made by an appellate court (which has already reviewed the case once) is challenged again in a higher appellate court (usually the High Court or Supreme Court).

2. Procedure for Further Appeals:

   • The procedure for appeals from an appellate decree or order is similar to that for an appeal from the original decree or order. However, the section specifies that when a second appeal or further appeal is filed from an appellate decree, the process will follow the rules applicable to appeals from original decrees, with certain modifications.
   • The higher appellate court will consider the grounds of appeal, the relevant facts, and legal issues before making a judgment. It may choose to affirm, reverse, or modify the decision of the lower appellate court.

3. Filing and Hearing of the Appeal:

   • The appellant files the appeal in the same manner as an appeal from the original court, following the procedural steps prescribed under the CPC for filing an appeal.
   • The Appellate Court will then hear the appeal and pass judgment after considering the facts, issues, and arguments presented.

4. Limitation on Grounds of Appeal:

   • The grounds for an appeal in this case are typically limited to legal issues or questions of law and jurisdictional errors in the decision made by the lower appellate court.
   • The higher appellate court generally does not re-examine the facts of the case unless there is a serious error in how the facts were evaluated, or there is a substantial miscarriage of justice.

5. Appellate Court's Power of Review:

   • The higher appellate court will review the judgment of the lower appellate court. However, the higher court generally exercises caution and only intervenes if it finds errors of law, incorrect application of legal principles, or miscarriage of justice.
   • The appeal will not involve a complete retrial, and the Appellate Court will focus on legal grounds rather than factual issues.

6. Effect of Appellate Decree or Order:

   • The appellate decree or order that is under appeal will continue to have effect unless the higher appellate court stays its execution or modifies the order.
   • If the second appeal or further appeal is successful, the higher court may modify or reverse the decision passed by the lower appellate court, making that decision the final decree or order in the case.

7. Rules of Court for Further Appeal:

   • The rules for second or further appeals are established under the CPC. In some cases, the rules may be modified for certain types of appeals (e.g., in commercial disputes or family law matters).
   • Section 108 aligns with the provisions in Sections 100, 101, and 102, which deal with second appeals and the grounds on which appeals may be entertained by higher courts.

8. Stay of Decree or Order:

   • In some cases, an appeal from an appellate decree or order may be accompanied by a stay order if the party applying for the appeal wants to prevent the execution of the decree or order passed by the lower appellate court.
   • The appellate court has the discretion to grant or deny such a stay, depending on whether the party seeking the stay can demonstrate sufficient grounds (such as irreparable harm or the likelihood of success in the appeal).

Punishment

Section 108 does not directly prescribe any punishments for the parties involved in the appeal process. However, the following consequences may arise:

1. Dismissal of Appeal:

   • If the higher appellate court finds that the appeal is without merit, it may dismiss the appeal.
   • If the appeal is filed on frivolous grounds, the court may impose costs on the party filing the appeal.

2. Stay of Execution:

   • If the higher court stays the execution of the decree or order, the status quo will be maintained until the appeal is decided. If the appeal is unsuccessful, the decree or order will remain in effect.

3. Costs:

   • The party losing the appeal may be ordered to pay costs to the other party, which can include the legal expenses incurred in the appeal process.

4. Finality of Order:

   • If the higher appellate court affirms the decision of the lower appellate court, the original decree or order will stand, and the party may have no further recourse unless there are grounds for review or a special leave petition.