To file an appeal against a decree you first get certified copies of the judgment and the decree, then file a memorandum of appeal with those copies before the court that hears first appeals — the district court or the High Court, as the value and the statute decide. You must file within the period of limitation, apply to condone any delay, and ask for a stay of execution in the same appeal. The grounds must be set out in the memorandum; a fresh ground later needs the court's leave.
Certified copies first, then the memorandum, then limitation and stay — that is the order in which an appeal is built.
Confirm first that what you are challenging is a decree within the meaning of Section 2(2) CPC. An appeal from an order follows a different route and a different period of limitation, and filing the wrong one wastes the time you cannot get back.
Before you start
- Certified copies of both the judgment and the decree appealed from.
- The date of the decree, because limitation runs from it.
- The value of the suit and the relief, which decide whether the first appeal lies to the district court or to the High Court.
- A vakalatnama, and the grounds of objection you mean to argue.
- Any application you need with the appeal — for condonation of delay, and for stay of execution.
Steps
- Decide which court hears the appeal. A first appeal from an original decree lies under Section 96 CPC to the court authorised to hear appeals from the court that passed it — the district court where the value is within its appellate jurisdiction, otherwise the High Court. The value and the governing statute decide the forum.
- Get the certified copies. Under Order XLI Rule 1 CPC the memorandum of appeal must be accompanied by a copy of the decree appealed from and of the judgment on which it is founded. The appeal cannot be admitted without them.
- Draft the memorandum of appeal. Set out the names of the parties, the decree appealed from, the grounds of objection concisely and under distinct heads, and the relief claimed. A memorandum that merely repeats the plaint is not enough.
- File within limitation. The Limitation Act 1963 sets a shorter period for an appeal to a court other than the High Court and a longer period for one to the High Court. If the period has run, file an application under Section 5 of the Limitation Act to condone the delay, with the reasons supported by an affidavit.
- Ask for stay of execution. File an application under Order XLI Rule 5 CPC with the appeal. The filing of an appeal does not by itself stay execution; the stay must be applied for and granted, usually on terms and often on security.
- Pay the court fee on the appeal. The fee is as the fee schedule prescribes for the value of the appeal, and the same refund rules apply if the appeal is not pursued.
- Restrict yourself to the grounds pleaded. Under Order XLI Rule 2 CPC the appellant may not urge a ground not set out in the memorandum except with the leave of the court, so every point you intend to argue belongs in the memorandum from the start.
Documents to keep
- Certified copies of the judgment and the decree, and a spare set.
- The memorandum of appeal with its grounds and the relief.
- The applications for condonation of delay and for stay, with their affidavits.
- The court-fee receipt and the vakalatnama.
- The lower-court record reference, so the appeal court can call for the file.
What goes wrong
- Filing the memorandum without the certified copies, which holds up admission.
- Miscalculating limitation from the date of the judgment instead of the date of the decree.
- Not applying for stay, and finding the decree executed while the appeal is pending.
- Raising a new ground at the hearing that was never pleaded, which the court may refuse to hear.
- Choosing the wrong forum and losing time before the appeal is re-filed in the right court.
Common questions
Where does a first appeal go?
To the court authorised to hear appeals from the court that passed the decree — the district court, or the High Court where the value or the statute so requires. A second appeal lies to the High Court under Section 100 CPC, and only on a substantial question of law.
Can I file the appeal without the certified copy of the decree?
Not in the ordinary course. Order XLI Rule 1 CPC requires the decree and the judgment to accompany the memorandum. Where the copy is awaited, the court sometimes allows the appeal to be filed with liberty to produce it, but this is a concession, not a right.
Does filing the appeal stop execution?
No. An appeal does not operate as a stay of execution. You have to apply under Order XLI Rule 5 CPC, and the court may require security before staying the decree.
What if I am late?
File an application under Section 5 of the Limitation Act to condone the delay, explaining each day lost. The court has discretion, but it is exercised only for reasons it accepts. See civil litigation for the appeal itself, recovery suits where the appeal and the execution are fought together; appeal and execution formats are in our civil litigation formats.
FileX Advocates & Legal Consultants, Kolkata, handles these matters before the Calcutta High Court, the City Civil and Sessions courts, magistrate, and the civil and execution courts. Call +91 7439811422 or WhatsApp us for a free first consultation.