September 15, 2026

How to File a First Appeal under Section 96 CPC

How to File a First Appeal under Section 96 CPC

A first appeal under Section 96 of CPC is the principal appellate remedy in civil litigation. It allows the appellate court to reconsider both the facts and the law involved in the case. Unlike a second appeal, which is generally confined to a substantial question of law, a first appeal provides a broader opportunity to challenge the findings of the trial court.

Because the evidence and factual findings can be examined at this stage, preparing a first appeal carefully is critical. The grounds of appeal, limitation period, and procedural requirements can all affect the outcome.

When an Appeal Lies?

Section 96(1) of the Code of Civil Procedure, 1908 provides that, save where otherwise expressly provided, an appeal shall lie from every decree passed by any court exercising original jurisdiction, to the court authorised to hear appeals from the decisions of that court.

Three limits appear in the section itself.

Section 96(2) preserves the right of appeal from a decree passed ex parte. The defendant also has the alternative of applying to set aside the ex parte decree under Order IX Rule 13, and the two remedies are not mutually exclusive in the manner the Code provides.

Section 96(3) bars an appeal from a decree passed by the court with the consent of parties.

Section 96(4) bars an appeal on a question of fact from a decree in a suit of the nature cognisable by courts of small causes where the amount does not exceed the sum the section specifies, subject to the exception stated there.

Note also what is not appealable under Section 96: an order that is not a decree. Appeals from orders are governed by Section 104 read with Order XLIII Rule 1, and that list is exhaustive.

First Appeal Under Section 96 of CPC: Step-by-Step Procedure

Filing a first appeal under Section 96 of CPC involves more than challenging the trial court’s decision. The appellant must follow the prescribed procedure, meet limitation requirements, and properly present the grounds of appeal.

Step 1: Confirm what you are appealing from

Establish that a decree has been drawn up, and obtain it. A decree is the formal expression of the adjudication; the judgment contains the reasons. Both are required.

Where the decree has not yet been drawn, apply for it — limitation runs from the date of the decree, and the exclusion under Section 12 of the Limitation Act, 1963 depends on the time requisite for obtaining copies.

Step 2: Apply for certified copies immediately

This is the single most important practical step, and it costs nothing.

Section 12 of the Limitation Act excludes, in computing the period for an appeal, the time requisite for obtaining a copy of the decree appealed from and of the judgment on which it is founded. The exclusion covers the time properly taken by the process — not time lost because the appellant delayed in applying.

Retain the application receipt and the endorsement showing when the copies were ready. That record is what establishes the computation.

Step 3: Compute limitation

Limitation is governed by the Schedule to the Limitation Act, 1963. Under Article 116, an appeal under the Code to a High Court from a decree or order is to be preferred within ninety days, and to any other court within thirty days. Article 117 governs an appeal from a decree or order of a High Court to the same court.

Because the applicable article depends on the forum, it should be read from the Schedule rather than assumed. Where limitation expires on a day the court is closed, Section 4 permits filing on the day it reopens.

If the appeal is out of time, an application under Section 5 for condonation must accompany it, explaining the delay with dates and material.

Step 4: Identify the appellate court

The appeal lies to the court authorised to hear appeals from the court that passed the decree. Which court that is depends on the forum that tried the suit and on the applicable pecuniary and jurisdictional arrangements in the State, which should be confirmed rather than assumed.

Where the decree was passed by a Commercial Court, the appellate route is governed by Section 13 of the Commercial Courts Act, 2015.

Step 5: Draft the memorandum of appeal

Order XLI Rule 1 requires the memorandum to be signed by the appellant or his pleader and presented to the court, accompanied by a copy of the judgment. The memorandum must set forth, concisely and under distinct heads, the grounds of objection to the decree appealed from, without any argument or narrative, and the grounds must be numbered consecutively.

That requirement is routinely ignored, and it matters. A memorandum that narrates the case history and argues the evidence obscures the grounds rather than presenting them.

Order XLI Rule 2 provides that the appellant shall not, except with the leave of the court, urge or be heard in support of any ground of objection not set forth in the memorandum — though the appellate court is not confined to the grounds set out, provided the respondent has an opportunity of being heard on any additional ground.

The practical consequence: take every ground in the memorandum. Adding one later requires leave.

Step 6: Court fee and the record

Court fee on a memorandum of appeal is payable under the Gujarat Court-fees Act, 2004 in Gujarat, computed in accordance with the applicable Schedule and the valuation of the relief.

The paper book comprises the memorandum, the certified copies of the judgment and decree, and the record from the trial court, which is called for by the appellate court.

Step 7: Stay of execution

An appeal does not operate as an automatic stay of the decree. Order XLI Rule 5 empowers the appellate court, for sufficient cause, to order stay of execution, and provides that no order for stay shall be made unless the court is satisfied that substantial loss may result unless the order is made, that the application has been made without unreasonable delay, and that security has been given by the applicant for the due performance of the decree.

An application for stay should therefore accompany the appeal, and should be prepared to offer security.

Step 8: Admission, notice and hearing

Order XLI Rule 11 permits the appellate court to dismiss the appeal at the admission stage without sending notice to the respondent, after hearing the appellant.

Where the appeal is admitted, notice issues, the record is called, and the matter is heard.

Order XLI Rule 22 permits the respondent, though he may not have appealed, to file cross-objections to the decree within the period the rule prescribes — an important remedy for a respondent who succeeded in part.

Order XLI Rule 27 permits additional evidence in appeal only in the limited circumstances the rule specifies, and not as a matter of course.

Step 9: The powers of the appellate court

Section 107 confers on the appellate court the power to determine the case finally, to remand it, to frame issues and refer them for trial, and to take additional evidence — together with the same powers and duties as a court of original jurisdiction.

Order XLI Rule 31 requires the judgment of the appellate court to state the points for determination, the decision on them, the reasons for the decision, and, where the decree is reversed or varied, the relief to which the appellant is entitled.

That last requirement matters on the way to a second appeal: a first appellate judgment that does not deal with the evidence and record its own reasons is itself open to challenge.

Practical Guidance

Apply for certified copies as soon as the judgment is delivered. Calculate the limitation period for a first appeal carefully and keep the computation on record. Draft clear grounds of appeal rather than lengthy arguments, and include every relevant ground in the memorandum. If necessary, file the stay application with the first appeal and be prepared to provide security. Since a first appeal allows the court to examine both facts and law, it is a critical opportunity to challenge the trial court’s findings.

Frequently Asked Questions

1. What is a first appeal under Section 96 of CPC?
A first appeal allows the appellate court to reconsider both the facts and law involved in the decree.

2. What is the limitation period for filing a civil appeal?
Under Article 116 of the Limitation Act, it is generally 90 days to a High Court and 30 days to any other court.

3. Does filing an appeal automatically stay the decree?
No. A separate stay application may be filed under Order XLI Rule 5 CPC.

4. Can new evidence be produced in a first appeal?
Yes, but additional evidence is permitted only in the limited circumstances specified under Order XLI Rule 27 CPC.

5. Can a respondent file cross-objections?
Yes. Order XLI Rule 22 allows a respondent to file cross-objections even without filing a separate appeal.

Legal Information Disclaimer

This article is published for general legal information and educational purposes only. It reflects the position of Indian law as researched up to 10 August 2026 and may not account for subsequent amendments, rules, notifications or judicial developments. Limitation periods, court fees and appellate forums must be verified against the current provisions applicable to the case. It is not legal advice, does not take into account any individual’s particular facts or circumstances, and no advocate-client relationship arises from reading it. Readers dealing with an actual matter should obtain independent professional advice from a qualified advocate of their own choosing before acting on any information contained here. Statutory provisions, notified figures, rules and case citations referred to in this article have been compiled from published legal materials and may contain errors or omissions, and may have changed since the date stated; no representation or warranty, express or implied, is given as to their accuracy, completeness or currency, and each should be independently verified against the official text or the official record before being relied upon. No liability is accepted for any loss arising from reliance on this article.

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