The Code of Civil Procedure 1908 briefly discusses appeals in part-vii and section 96 to section 112.
Analysis of those sections can find how to civil appeal from original decrees, appeals from orders, general provisions relating to appeals, and appeals to the appellate division.
On the next in the same code first schedule order 41 to order 45 briefly discuss the procedures of the same sections. So, analysis of above we see that appeals mainly two types, appeals from original decrees and appeals from orders.
The next point tries to disclose the nature of types of appeals.
Section 96 of the code of civil procedure provides an appeal may lie from an original decree passed ex-parte but this section said no appeal shall lie from a decree passed by the court with the consent of parties.
On section 104 provides appeal lies an order under section 35(A), section 95, also said that 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 the execution of a decree.
Another one is an order made under rules from which an appeal is expressly allowed by rules, provided that no appeal shall lie against any order in section 35(A) save on the ground that no order or an order for the payment of a less amount ought to have been made.
And under this section, no appeal shall lie from any order passed in appeal. So We see that Civil appeal may be following two types.
An appeal must have been heard on those courts who have proper jurisdiction to hear.
On the other side section, 109 provides the following time’s appeals shall lie to the appellate division-
a) from any judgment, decree, or final order passed on appeal by the High court Division or by any other court of final appellate jurisdiction;
b) from any judgment, decree, or final order passed by the High court Division in the exercise of original civil jurisdiction; and
c) from any judgment, decree, or final order, when the case, as hereinafter provided, is certified to be a fit one for an appeal to the appellate Division.
So in the above discussion analysis, we see that the nature of civil appeal maybe two kinds basically but the original jurisdiction of appeal may lies first and it determine by the civil court act, 1887 (ACT NO. XII OF 1887)
Moreover appeal is a good system to ensure justice by thinking in different steps. But in our legal system and procedure most of the sections, orders, and rules constituted do lengthy the appeal process and it’s highly problematic to ensure justice in due time.
If a litigant who seeks his right and justice can’t get in due time, the decree or order would be unnecessary and I think it’s can’t affect soo.
We see that on The Code of Civil Procedure, 1908 Order 41, Rule 12(A) provides adjournments in appeal and it’s the major problem of civil appeals.
Rule 12(A) Provides the appellate court shall not grant more than three adjournments for hearing of an appeal at the instance of either party to the appeal, and any adjournment granted to a party beyond the aforesaid limit shall make such party liable to pay such cost which shall not be less than two hundred taka and more than one thousand takas to the other party as the court may deem appropriate and determine, non-compliance with which, by the respondent shall render the appeal liable to be disposed of ex parte.
So in this rule, we see that three adjournments can take the party, in practice, the following three adjournments may take more time which violates the main objectives of the party.
Another one is according to Rule 14 publication and service of notice of day for hearing the appeal, it may take also a long time.
So I think that adjournments are the major problems of the civil appeals not to end early and by this process, the real litigator can be hampered too.
With this rule a lot of rules here which is also a problem and corn of civil appeals.
The Law is not equal to justice. Justice is an ideal. Law is a tool to get there sometimes.
The Law and the Practice are too different. In the case of a civil suit, we see that most of the litigators hampered to take most of the time on direct the suit.
If we want to take real advantage of the civil appeal must have reformed it rarely. The civil appeal in the Bangladesh context is not well at all.
Ref:
1. Imtiaz Ahmad, The Code of Civil Procedure, 1908 (Third Edition, October 2018, Sufi Prokashoni) 12
2. Md. Jahrul Islam, Imtiaz Ahmed, A Commentary on the code of civil procedure (First Edition, May 2015, Sufi Prokashoni) 210
3. Legislature and parliamentary Affairs Division, (The Civil Courts Act, 1887) <http://bdlaws.minlaw.gov.bd/act-59.html> accessed 18 May 2020
4. Imtiaz Ahmad, The Code of Civil Procedure, 1908 (Third Edition, October 2018, Sufi Prokashoni) 318
