DR ANUPAM KUMAR MISHRA

Section 108 CPC Description The provisions of this Part relating to appeals from original decree shall, so far as may be, apply to appeals- (a) from appellate decrees, and (b) from Orders made under this Code or under any special or local law in which a different procedure is not provided.

 Section 107 CPC Description (1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power- (a) to determine a case finally; (b) to remand a case; (c) to frame issues and refer them for trial; (d) to take additional evidence or to require such evidence to be taken. (2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein. COMMENTS Neither the issue framed nor evidence led in trial court in respect of mixed question of fact and law. New plea raised before the Supreme Court not permissible on the ground that the establishment of fact by evidence for decision is necessary; Vasantha Viswanathan v. V.K. Elayalwar, (2001) 8 SCC 133.

  Section 106 CPC Description Where an appeal from any Order is allowed it shall lie to the Court to which an appeal would lie from the decree in the suit in which such Order was made, or where such Order is made by a Court (not being a High Court) in the exercise of appellate jurisdiction, then to the High Court.

  Section 105 CPC Description (1) Save as otherwise expressly provided, no appeal shall lie from any Order made by a Court in the exercise of its original or appellate jurisdiction; but. where a decree is appealed from, any error, defect or irregularity in any Order, affecting the decision of the case, may be set forth as ground of objection in the memorandum of appeal. (2) Notwithstanding anything contained in sub-section (1), where any party aggrieved by an Order of remand 1[*****] from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness. 1. The words "made after the commencment of this Code" omitted by Act No. 104 of 1976, sec. 42 (w.e.f. 1-2-1977).

  Section 104 CPC Description (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:- 1[***] 2[(ff) an Order under section 35A;] 3[(ffa) an Order under section 91 or section 92 refusing leave to institute a suit of the nature referred to in section 91 or section 92, as the case may be;] (g) an Order under section 95; (h) an Order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree; (i) any Order made under rules from which an appeal is expressly allowed by rules; 2[Provided that not appeal shall lie against any Order specified in clause (ff) save on the ground that no Order, or an Order for the payment of a less amount, ought to have been made.] (2) No appeal shall lie from any Order passed in appeal under this section. 1

  Section 103 CPC Description 1[ In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,- (a) which has not been determined by the lower Appellate Court or both by the Court of first instance and the lower Appellate Court, or (b) which has been wrongly determined by such Court or Courts reason of a decision on such question of law as is referred to in section 100.] 1. Subs, by Act No. 104 of 1976, sec. 40 for section 103 (w.e.f. 1-2- 1977).

  Section 102 CPC Description 1[ No second appeal shall lie from any decree, when the subject matter of the original suit is for recovery of money not exceeding twenty-five thousand rupees".] 1. Section 102 was substituted by Act No. 46 of 1999, section 11 and now further substituted by Act No. 22 of 2002, section 5 (w.e.f. 1-7-2002).