The Code of Civil Procedure 1908 briefly discuss about appeals in part-vii and section 96 to section 112.
Analysis of those section can found how to appeals 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 same sections. So, analysis of above we see that appeals mainly two types, appeals from original decrees and appeals from orders.
The next point trying to disclose nature of types appeals.
Section 96 of the code of civil procedure provides an appeal may lie from an original decree passed exparte but in this section said no appeal shall lie from a decree passed by the court with the consent of parties.
On the 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 prisoner of any person except where such arrest or detention is in execution of a decree.
Another one is any 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.
In a appeal must have hear on those court whose have proper jurisdiction to hear.
On the other side section 109 provides the following times appeals shall lie to the appellate division-
a) from any judgement, decree or final order passed on appeal by the High court Division or by any other court of final appellate jurisdiction;
b) from any judgement, decree or final order passed by the High court Division in the exercise of original civil jurisdiction; and
c) from any judgement, decree or final order, when the case, as hereinafter provided, is certified to be a fit one for appeal to the appellate Division.
So in above discussion analysis we see that nature of civil appeal may be 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 differents steps. But in our legal system and procedure most of the sections, orders and rules constituted which do lengthy the appeal process and it’s highly problem of ensure justice in due time.
If a litigants who seek his right and justice can’t get in due time, the decree or order would be unnecessary and i think it’s can’t effect soo.
We see that on The Code of Civil Procedure, 1908 Order 41, Rule 12(A) provides adjourments in appeal and it’s the major problems 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 taka 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 he disposed of ex parte.
So in this rule we see that three adjournments can take party, in practice the following three adjournments may take more times which violates the main objectives of the party.
Another one is according to Rule 14 publication and service of notice of day for hearing appeal, it may take also long time.
So i think that adjournments is 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 rule here which is the also 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 is too difference. In case of 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. Civil appeal on Bangladesh context is not well at all.
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