Appellate Court to have same powers as Courts of original jurisdiction.

582. The appellate Court shall have the same powers in appeals under this chapter as are vested by this Code in Courts of original jurisdiction in respect of suits instituted under chapter V.

The provisions hereinbefore contained shall apply to appeals under this chapter so far as such provisions are applicable.

583. When a party entitled to any benefit (by way of restitution or Execution of decree otherwise) under a decree passed in an appeal under of appellate Court. this chapter desires to obtain execution of the same, he shall apply to the Court which passed the decree against which the appeal was preferred; and such Court shall proceed to execute the decree passed in appeal, according to the rules hereinbefore prescribed for the execution of decrees in suits.

In their Final Report the Select Committee thus explained the object of this curiously worded amendment of the old Sec. 362: We have amended Sec. 583 so as to enable a party entitled to any benefit, by way of restitution or otherwise, under a decree to obtain execution of the same. This will provide for the frequent cases in which property has been taken from a defendant and given to a plaintiff in execution of a decree which is subsequently reversed. In such cases the defendant is no doubt entitled to a writ of restitution. But it is obviously better to render it unnecessary to apply for such a writ.

CHAPTER XLII.

OF APPEALS FROM APPELLATE DECREES.

This new chapter replaces the old Chapter X "of Special Appeals," which gave the High Courts power to hear special appeals from all decisions passed in regular appeal," by the courts subordinate to them, and which has been held to make orders that are appealable under the Code, like decrees, subject to a special as well as a general appeal. See Virasami Mudali v. Manommany Ammal, 4 H. C. R., 32; Mahomed Hossein v. Sheikh Afzul Ally, Marsh,

296.

The new chapter speaks only of "appeals from appellate decrees," whilst Sec. 588 expressly makes final all orders passed in appeals under it.

"The 'special' appeal is the appeal on certain special grounds and is a second appeal. The 'regular' appeal is an appeal in which

any ground of objection is open to the appellant; it is the first appeal and applies generally to the whole decision. It would be more appropriately called a general than a regular appeal." Virasami Mudali v. Manommany Ammal, 4 H. C. R., 32.

584. Unless when otherwise provided in this Code or by any other law, from all decrees passed in appeal by any Court subordinate to a High Court, an appeal shall lie to the High Court on any of the following grounds (namely)

Second appeals to High Court.

Grounds of second

appeal.

(a) the decision being contrary to some specified law or usage having the force of law;

(b) the decision having failed to determine some material issue of law or usage having the force of law;

(c) a substantial error or defect in the procedure as prescribed by this Code or any other law, which may have produced error or defect in the decision of the case upon the merits.

A substantial error or defect.-Such for example as deciding on no evidence, or on what is no legal evidence. Where the decision proceeds upon the point as to the credibility and weight of evidence, it cannot be objected to on special appeal. Ramsoonder Sircar v. Kistobug Bug, Marsh, 322.

The misconstruction of a document is an error in law, within the meaning of this section. Odit Narain v. Maharajah Maheshur

Bux Singh, 1 H. C. R., (N. W. P.) F. B., 52.

Where an appellate court appears not to have taken into its consideration a presumption of fact arising out of the circumstances in evidence and materially affecting the decision of the case, that is such "defect" within the meaning of this section as the High Court will remedy on special appeal by directing an issue. Nílatátchi v. Venkatáchala Mudali, 1 H. C. R., 131.

A special appeal lies from a judgment in which the decree of the lower court is reversed without any reasons given for differing as to facts. Sheikh Goburdhun v. Sheikh Sadhoo, 1 W. R., 244.

An objection as to the plaintiff having no cause of action may be taken at any stage of the suit, even on special appeal, for it affects the jurisdiction of the court. Parbati Charan Mukhopadhya v. Kali Nath Mukhopadhya, 6 B. L. R., App., 73.

Second appeal on 585. No second appeal shall lie except on the

no other grounds.

grounds mentioned in section 584.

586. No second appeal shall lie in any suit of the nature cognizable in Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed five hundred rupees.

No second appeal in certain suits.

Provisions as to second appeals.

587. The provisions contained in chapter XLI shall apply as far as may be to appeals under this chapter, and to the execution of decrees passed in such appeals.

Orders appealable.

CHAPTER XLIII.

OF APPEALS FROM ORDERS.

588. An appeal shall lie from the following orders under this Code and from no other such orders :

(a) orders under section 20, staying proceedings in a suit;

(b) orders under section 32, striking out or adding the name of any person as plaintiff or defendant;

(c) orders under section 44, adding a cause of action;

(d) orders under section 47, excluding a cause of action;

(e) orders rejecting or returning plaints under section 53, clause (d), or section 54, clauses (b) and (d), or section 57, clauses (b) and (c);

(f) orders rejecting applications under section 103 (in cases open to appeal), for an order to set aside the dismissal of a suit ;

(g) orders under section 120, where a party fails to appear in person; (h) orders under section 168, for attachment of property;

(i) orders under section 177, where a party refuses to give evidence or produce a document called for by the Court;

(j) orders under section 244, as to questions relating to the execution of decrees, of the same nature with appealable orders made in the course of a suit;

(k) orders under section 258, compelling decree-holders to certify;

(1) orders under section 261, as to objections to draft-conveyances or draft-endorsements;

(m) orders under section 312, for confirming or setting aside a sale;

(n) orders in insolvency-matters under section 351, 352, 353 or 357;

(0) orders rejecting applications, under section 370 for dismissal of the suit;

(p) orders disallowing objections, under section 372;

(q) orders as to interpleader-suits, under section 473, 475 or 476;

(r) orders under section 479, 480, 481, 485, 492, 493, 496, 503;

(s) orders under section 514, superseding an arbitration;

(t) orders under section 518, modifying an award;

(u) orders under any of the provisions of this Code, imposing fines, or for the imprisonment of any person, except when such imprisonment is in execution of a decree;

(v) refusals under section 558 to re-admit, or under section 560 to re

hear, an appeal;

(w) orders under section 562, remanding a case.

The orders passed in appeals under this section shall be final.

With regard to appeals from orders: Unless there be some provision of the Code under which an appeal preferred by a party from the order of the lower court can be received, such appeal must be rejected. Pro. S. C., 13th July, 1861. The appellant must show in every case that such provision exists, and much trouble may be saved by the Appellate Courts being careful in every case of an appeal from an order to ascertain whether an appeal lies, before calling upon the respondent to appear and answer. It constantly happens that courts make orders unauthorized by any law, and profess to make them under some section of the Code that is wholly inapplicable to the case and where this is done, often it is most difficult on appeal to decide whether the appeal can be admitted.

Court which shall hear appeals.

589. An appeal from any order specified in section 588, clause (n), shall lie to the High Court. When an appeal from any other order is allowed by this chapter, it shall lie to the Court to which an appeal would lie from the decree in the suit in relation to which such order was made, or, when such order is passed by a Court (not being a High Court) in the exercise of appellate jurisdiction, then to the High Court.

590. The procedure prescribed in chapter XLI shall, so far as may be, apply to appeals from orders under this Code, or under any special or local law in which a different procedure is not provided.

Procedure in appeals from orders.

No other appeal from orders; but error therein may be set forth in memorandum of appeal against decree.

591. Except as provided in this chapter, no appeal shall lie from any order passed by any Court in the exercise of its original or appellate jurisdiction; but if any decree be appealed against, any error, defect or irregularity in any such order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal.

Or appellate jurisdiction.-See Sec. 582.

CHAPTER XLIV.

OF PAUPER APPEALS.

592. Any person entitled under this Code or any other law to prefer Who may appeal as an appeal, who is unable to pay the fee required for the petition of appeal, may, on presenting an pauper. application accompanied by a memorandum of appeal, be allowed to appeal as a pauper, subject to the rules contained in chapters XXVI, XLI, XLII and XLIII, in so far as those rules are applicable:

Provided that the Procedure on appli

cation for admission of appeal.

593. The inquiry

Enquiry into pauperism.

Proviso.

Court shall reject the application unless upon a perusal thereof and of the judgment and decree against which the appeal is made, it sees reason to think that the decree appealed against is contrary to law or to some usage having the force of law, or is otherwise erroneous or unjust.

into the pauperism of the applicant may be made either by the appellate Court or by the Court against whose decision the appeal is made under the orders of the appellate Court:

Provided that, if the applicant was allowed to sue or appeal as a pauper in the Court against whose decree the appeal is made, no further enquiry in respect of his pauperism shall be necessary, unless the appellate Court sees special cause to direct such enquiry.

CHAPTER XLV.

OF APPEALS TO THE QUEEN IN COUNCIL.

This chapter is merely a transcript of the repealed Privy Council Appeals Act, 1874.

594. In this chapter, unless there be something repugnant in the subject or context, the expression 'decree' includes also 'Decree' defined. judgment and order.

595. Subject to such rules as may, from time to time, be made by Her When appeals lie to Majesty in Council regarding appeals from the Courts of British India, and to the provisions hereinafter contained

Queen in Council.

an appeal shall lie to Her Majesty in Council

(a) from any final decree passed on appeal by a High Court or other Court of final appellate jurisdiction;

(b) from any final decree passed by a High Court in the exercise of original civil jurisdiction, and

(c) from any decree, when the case, as hereinafter provided, is certified to be a fit one for appeal to Her Majesty in Council.

Value of subjectmatter.

596. In each of the cases mentioned in clauses (a) and (b) of section 595,

the amount or value of the subject-matter of the suit in the Court of first instance must be ten thousand rupees or upwards, and the amount or value of the matter in dispute on appeal to Her Majesty in Council must be the same sum or upwards,

or the decree must involve, directly or indirectly, some claim or question to, or respecting, property of like amount or value,

and where the decree appealed from affirms the decision of the Court immediately below the Court passing such decree, the appeal must involve some substantial question of law.

Bar of certain ap- 597. Notwithstanding anything contained in peals.

section 595,

no appeal shall lie to Her Majesty in Council from the judgment of one Judge of a High Court established under the twenty-fourth and twenty-fifth