Chapter 3 The Right of Appeal from Civil Suit ifthe partes after passing of the final decree in civil suit by the original Court spots sch deste, they can ile an appeal tothe superior Cour, Butit isnot eget iit. Te parts can aply tis ight only when te exising laws granted. In sas th parties ean lean appeal to the superior Court atthe fist time, This ‘fist appeal. The decision ofthe fist appellate Court may be ia forthe suit f de pes satisfied. But they can apply the second time an ppea to the Supreme cout within the period of limitation under the Limitation Act. This sealed second peat This right i only in the evil suit and notin criminal proceeding. Bu, szuting to Section 102 of the Code of Civil Procedure, the amount value of the jet mater ofthe suit must be not less than 2,000,000 Kyat in order file second gpl under the Notification No (6/2000) of the State Peace and Development Cunel (SPDC) and by Section 6 of the Law Amending of the Code of Civil Fracedure. So suit less than the value of 2,000,000 Kyats can not file second appeal. 3. Civil Appeal Ifan order passed by the bepsented and not exercised criminal appeal. In the case of Maung Soe A Wie Myint Kin and two others * the Court held tat asthe matter applied by the ‘pla is one arising out ofthe civil suit the criminal miscellaneous case may not Rea ot Nang Soe Aung Ma Myint Myint Kin, 1983, BLLR. P90 civil suit is not satisfied, the tight of civil appeal may ang v Malitigant is given aright of appeal from ihe original deere by Section 96 ofthe Code of Civil Procedure ‘An appeal from the original decree is called a frst a Civil . Civil appeal cannot te granted unless the decree or order has been passe ina civil procedi presented by the aggrieved parties after the decree or ond ee reatina ler has been passed in civil proceeding. An appeal is preferred against a decree or an order, There is no appeal from an jtem of a decree or that of the order.? (1) Save as otherwise expressly provided by the body of the Code of Civil Procedure or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to here appeals from the decision of such Court, (2) Anappeal may lie from an original decree passed ex-parte (G) _ Noappeal shall lie from a decree passed by the Court with the consent of the parties. * While Sub-section (1) & (2) of the Section 96 of the Code of Civil Procedure, confers on & litigant the right of appeal including such right against a decree passed exprte, sub- section (3) takes away such right in eases where such decree is passed with consent of the parties. ‘The scope of this section suffers ftom certain limitations. They are (1) the appeal must be preferred from a decree and not from a judgment or order of the Court; (2) the decree must be of a Court exercising original jurisdiction; (3) the appeal must ‘ Jing a Summary of the Code of ‘TL. Venkatarama Aiyar, Mulla Mulla The Key to Indian Practice being a ary , Civil Procedure, § Edition, 1968, Bonbay, N.M. Tripathi Private ID. pS9. ‘Daulat Ram Prem, Prem's Law of Criminal & Civil ‘Appeals, Supreme Court Appeals & Practice, + 988,, Arora Law, House, p29. Seeion 96 ofthe Code of Civil Procedure. The Myanmar Code Vol XIpe led before a Court authorized ty here 15 i such er law for the time being i appeals (4) it me any oth ing in force,’ lust not be barred by re Daw Tin Nwe cannot present an appeal ivil Procedure Code, In the case of U Khin Maung Lin and 9 others » U Court held that Section 96 (1) of the Code of against such decree by Section 96 of the; Hla Myint and one the Procedure, an appeal shall lie from oo. oe original jurisdiction to the Court : ion of such Court, No appeal shal lie from any order made in revision by the Court exercising revisional authority. The case was further held that a revision may be applied any non- appealable order. According to the Section 8 (b) of the Law Amending of the Code of Civil Procedure, 6/2000, Section 115 shall not apply to the record of any case which has been decided by any Court in the exercise of its revisional jurisdiction or its appellate jurisdiction, ‘Therefore an appellant shall not apply an appeal or revision against an order made by the Mandalay District Court exercising evisional jurisiction. Section 96 (3) is based on the principle that a person who gives his consent to decree being passed against him is later on estopped from challenging the same. It is equally applicable to appellate decree, but does apply to execution proceedings. A consent decree means a decree arrived at between parties with the consent of all persons concemed. Where a decree is passed partly on compromise, partly on consent and partly ex-parte, it is not a consent decree.® Inthe case of Daw Myint Thein (a) Amini and other v U Myint Thin and five that according to Section 96 (3) ofthe Code of Civil Procedure others ® the Court held Code, no appeal shal ie from a deere passed by the Court with the consent of the ee + gation, Vol. I, Law Book Co. p.266. ; = sions, 1974, 3" Edition, Vol. 1, P. BN. Banerjee, Civil Appeals and ee «DNB of Daw Tin Nwe v Daw Hite 19 32 done, 2003 MLR, p-210. 7 Uhm Mave Lin and 9 others vU Hla Myin}2n8 "cog, yl. in tree Volumes, 1982, : oe of Ci? ‘MLL. Singhal,Sanjiv Rows, ‘The: Ealion aw Book Commy 1? 550 yg hina ve oe 995MLRP, 138 * Daw Myint Thein (a) Amini anpermite. In the case of U Chan Poe and other » Daw Sein and oher ie Cont bet that according to Section 96 (3) of the Code of Civil Procedure Code, a appeal = lie from a decree passed by the Court with the consent of the ae The decree passed by the Court in this proceeding is apparently become the consent of both pares. Therefore this application is not pete to file an appeal by section 96 (3) ofthe Code of Civil Procedure, Therefore according to the above mentioned appeal from original decree or first appeal is the right granted by the provision of Section 96 of the Civil Procedure Code. A decree passed ex-parte by the original Court may also appeal. But the decree passed by the consent of both parties may not file an appeal. The consent must be that of both parties. If there does not exist the parties’ consent, such decree may not be called the consent decree. Such kind of decree may be fled an appeal. Consent by the respondent in the original suit may not be barred aright of appeal 3.1.1 Kinds of Civil Appeal There are two kinds of appeal in Myanmar. They are civil appeal and criminal appeal. In this Chapter, civil appeal is only stated. Various kinds of civil appeal are as follows; (@) appeal from original decree (Section 96 of the Civil Procedure Code) (i) preliminary decree & Gi final deeree appeal from appellate decree (oF) second appeal (Seetion 100 of the Civil ) Procedure Code) (©) appeal from orders (miscellaneous appeal) (Section 104 and Order XLII of the Civil Procedure Code) and ee °° U Chan Poe and other v Daw Sein and other,1978 BLLR.p. 14n (o _ Faure peal (Onder XLIV ofthe Civil Procedure Co _ __ Asthere are two kinds of decree such as le). och bas the right of appeal, Hoviever, if the prfiminary decte, he cannot complaint the exon Preliminary decree and final decree, i he shall be preclude a itscorectess in any appeal which may be prefered fo ou a fos disputing . ie final decree. Inthe case of U Zaw Lin (his legal representative, Daw Myint ‘San San Shwe " Myint) v Daw 2 the appellant ene aias ne Court held that ifthe lattepwa pro ee eee att operty does not leave, the preliminary decree for the petition of Property may not be passed. It may be deemed the presentation of erroneous of preliminary deeree upon the appellant’ statement thatthe passing ofthe decree for petition of property is wrong without leaving she latepwa property. Section 97 ofthe Civil Procedure Code provides that where any party aggrieved by @ preliminary decree passed after the commencement of this Code does not appeal from such deere, he shall be precluded fom disputing its correctness in any appeal which say be preferred from the final decree. Therefore, the statement ofthe appellant may rot be accepted. ‘Where an aggrieved party does not prefer an appeal against the preliminary deoree, he cannot challenge the corecinss of the preliminary decree in an appeal from a final decree even the legal validity of the preliminary decree cannot be challenged. At the time of passing of the final decree the Court is not competent to deve the questions which have already been decided by the preliminary decree. As to the matters covered by it, preliminary decree is regarded as embodying the final decision of the Court passing that decree." “Therefore, the right of appeal under setion 97 ony arises when a preliminary decree ig drawn, Where a preliminary deeree has not been drawn, Section 97 does not apply. "Seaton 97 of the Civil Procedure Coe " U Zaw Lin (his legal representative, Daw -The Code of Civil Proved, 1908, Vo. in Three Volumes, 1982, Law Book Myint Myint) v Daw San San Shwe , 1993, [Link], DB, p29. © Sanjiva Rows, ‘Company, p. 504.B Appeal from the appellate deer tpobiain this tight. Atbouth ev Person haste ih to su, right of appeal is only obtained * This appeal is call lled miscell ‘There are two kinds of order. They are appell iscellaneous appeal. lable order and non- 1 appealable order, Therefore al the orders have not ight of appeal. Only appealabl oder ander Saxon 104 ofthis Code may fle appeal tothe superior Cou. Appesable odes are fly stated in Order XLIM, Rule 1 ofthis Code. The decree has the righ of second sppel. But order has no right of second appeal. Therefore, theres no right of second appeal from any order passed by any other appellate Court. Although there is only @ decree ina suit, so many orders may be made in a suit, ‘Any person entitled to prefer an appeal, who is unable to pay the fee required for the memorandum of appeal, may present an application accompanied by a memorandum of appeal, and may be allowed to appeal as a pauper, subject, in all nuties including the presentation of such application, to the provisions relating to suits by paupers, in so far as those provisions are applicable" The appellant seeking leave of the appellate Court to permit him to file a nemorandum of appeal in forma pauperis must satisfy the appellate Court that he is ‘able to pay the fee required for the memorandum of appeal. The Court does not senerally come to an ex-parte decision on question of pauperism in favour of the ‘ppellant without giving an opportunity to the other side to meet the petition. '* Jn Myanmar, a party who is not able to file a suit or to file an appeal to the Court and not able to pay the court-fees in his or her application, the Court may pate ane ws Otler XLIV, Rule | ofthe Code of Civil Procedure. ‘BN. Banetjce, Civil Appeals and Revisions, 1974, 3 Edition, Vol. I, p. 5823.2 Appealable Person A has no ii person : inherent right of appeal. It must be given by ane enactment. As the right of appeal is not an inhe 2 category of fundamental rights, Therefore, limitations on the right of appeal,!* ent right, it cannot come under the itis open to the legislature to impose A ra Who is a party to the suit, in the event of his death, his legal representative or any party who is adversely affected by the decree can file an appeal. Where a guardian ac litem has been appointed fora minor defendant, no one except the guardian ad litem unless he is acting against the interest of the minor can file appeal. If the decree adversely affects a deereesolder and negatives a party of his claim, he can appeal against that part of the decree. A pro forma defendant has also tight to file an appeal.” A person who is not the party in the suit or in the execution suit cannot file appeal from the decree of the suit or order of the execution.!* Another one is that according to Order XLI, Rule 4 of the Code of Civil Procedure, where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to. all the defendants; any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the appellate Court may reverse or vary the deeree in favour of all the plaintiffs or defendants, as the case may be In the case of Daw Ha Wa Bee (a) Daw Khin Yee and four others v U Ba ye” according to Order XLI, rule 4 of the Code of Civil Procedure, where there are more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the defendants; any one of the defendants may appeal from the sme Court Appeals & Practice, 1988, p23, 2 's, Law of Criminal & Civil Appeals & Suprer rt a Pe nC ey con, oe Review and Abatement, 1" Edition, 2007, p. 15, Ba Kyaing, U, Appeal , Revision » Dada isan ey Daw Khin Yee and four obers VU Ba Aye, 1985, MLR p. 45,and thereupon % le decree, tpon the appell wis late Court may vou ofall the defendants the cage may In the cae of Director General and ong coin Par Caph (@) Maung Aye v Chan Da Rq isthe Court held thatthe parties wing gear of any COU ae as follows, Y Feverse or vary the ese in Pai We (alia) Dery Mya Khir tov tomme rane al against judgment (@) _ snaearieved party bya deste or ithe died hig (b) person who obtained the interest of sth en, eee record of the case; () _ anauction buyer may appeal against the dismissal onde ler execution on the ground of cheating of the sold property in ‘The representative may take or be taken the application to the Court. In Section 146, save as otherwise provided by the Civil Procedure Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him." In the case of Daw Myint Thein (a) Amini and other v U Myint Thein and five others the Court held that the party in an original suit may appeal within the limitation without claiming the permission to the Court. Ifa person who is notin the suit has the duty to abide decree, or being grave aggrieved person by the decree, or affect, although it may not be filed an appeal without the permission of the Court, if such person may present the salient fact the reson to obtain the permission of the Court, he may appeal. The representative of the grave aggrieved person may also apy 7 This nature is decided in the case of Daw Tin Kyi v U San Myint ‘and one. peal in a suit. a Property Department) Ot Par Caph() Maung Ave y ine offers, 190,ML- pI Chan Da Ra Dai We (alia) Daw Mya Kina sie 5, . MPeocedue Code, 199- —ae S MLR. 135, Deg te Gy aint and ev U Nyt TH oe Daw Th yl v U San Myint and one, 1990, MLAB (ED) ” Director General and one (Housing81 in this ase, the paint ‘ff, Daw Aye and the respondent is real relative. The espondent asked the Plaintiff fo sign the document forthe med ge is being admitted in hospital, Later she knew tha thi am —— ~ gu land and Property in Pathein, a i nee is one which is jroarwadi Divisional Court stating that this eee = i = Tate goad to her own. During the proceeding, as she died, oe ue applied that she is Kittima daughter of deceased and to oe I Zi ae put, the Court dismissed the suit, The appellant applied to = ee disnisal tothe Supreme Cour. The Supreme Court also dismissed the aplication, : In Section 146 of the Civil Procedure Code, where any proceeding ma; be taken or application made by or against any person, then the proceeding may be as or the application may be made by or against any person claiming under him. ‘Therefore, the legal representative may appeal against grave aggrieved decree under this Section. After having dismissed order that Daw Aye is not the legal representative of Daw Tin Kyi and she has the right to the legal representative in the case, she may undertake other matters including the ight of appeal. 34.3 Forms of appeal Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented tothe Court or to such officer ast appoints in this behalf. The memorandum shall be accompanied by the copy of the decree appealed from and of judgment on which itis founded" ‘The memorandum shall set forth, concisely and under distinct heads, the 1 deoree appealed from without any argument or nasrative, and grounds of objection t such grounds shall be numbered consecutively. “The memorandum shall also contain a statement of the valuation of the appeal ore cases are tried together and forthe purposes of the Court-Fees Act. When two oF mi decided by the same judgment and two Or more appeals are filed against the decrees by the same appellant or appellants it shall not be necessary to produce more than one copy of the, judgment.”* % Opder XLI, Rule, 1 (1) ofthe “Code of Civil Procedure, . ul 2) sai nin comet en ec oe lure, , 5" Edition, 1951, The All India Reporter ALR, Commentaries» Tad, WoL. ll, pp.3261 3202 case of Daw Ma Gaule v U Ah Yaung™ where the oe fied by te appellant without complying withthe Sree bes of the Code of CHV Procedure by omitting to file a certified c ee pole ra fom. But where the certified copy of the order appeal pile ene eset within the period of limitation, the filing of the certified a cs ot led from, though belated, had the effect of validity the appeal as from the eof filed. tn the ease of Ma Aye Kyin v Daw Nyein and tvo others the Court held that Section 96 of the Code of Civil Procedure an appeal shall lie from the deeree ao not fromm 8 judgment. Order XLI Rule, (1) provides inter alia that the era of appeal shall be accompanied by a copy of the decree appealed from. tn the case of U Boo Sein and five others v Mg Aye (alia) Inn Inn Key 2. seondng 10 Order XLIy Role 1 ofthe Civil Procedure Code, the memorandum of goa shall be aecompanicd with the copy of the decree of the Court. If the Court its, the memorandum of appeal can be filed without the copy of the judgment. It led without the copy of the decree. case of Ko Hla Aung and one v Ko Tin Lwin 3 according to Order XLI, in the cannot be fill Inthe rule lof the Civil Procedure Code, the memorandum of appeal shall be accompanied with the copy the hearing of the suit. Although the Court may permit to ent of the subordinate Court, the Court cannot hear of the decree of the Court. But this case is not presented the copy until accept the application of dg and decide the appeal without the decree appealed from. Sein and three others *" it In the case of U Sein Win and 8 others v Daw Aye ‘ted with the permission of the vas held that the copy of judgment need not be presen ich copy is not presented, the Court, But the copy of the decree must be presented. If su appeal is void. Therefore the memorandum of appeal must be accompanied with the copy of accept the application of the decree of the Court. Although the Court may permit to judgment of the subordinate Court, the Court cannot hear and decide the appeal Without the copy of the decree appealed from. The copy of judgment need not be seetaaae eee emeae a Pav Ma Gaule v U Ah Yaung, 1988, BLR Of 410. u Aye Kyin v Daw Nyein and two others, 1959, [Link], H.C, 187. a » ae and five others v Mg Aye (alia) Inn Inn Key,1971, BL-R, P- "Use la Aung and one v Ko Tin Lwin ,1979 B. in Win and 8 others v Daw Aye Sein and three o 98. hers, 1981, MLL-R, p43.83 with the permission of the Cour, But eo Jn copy is not presented, the the COBY ofthe decree must be joa. Ie sue , the appeal is void. fe iat of Appeal imitation is important point not only forthe presentation of suit but also the ut also the aoe? appeal. Time is precious. The law assists the diligent and not the indolent. spe ied wh a ae mt be filed within the Hinton, These maters are protected by the tin A ‘There is a maxim that "Time and Tidy wait for no man". in the computing the time of limitation for the purpose of an application for ‘he superior courts, the application must be presented within the time limited nor any rule permitting ‘one should receive must lose due to the delay. All the suits and a suits ro Lae Limitation Act, 1909. There is nether any sect sex anyoe con preset application for the appeal to the superior court beyond the jad of limitation. ‘The appellate Court will not give leave to appeal if the applcnion is made ater the period of limitation. ‘An appeal to the Distinct Court shall be presented within 30 days from the dar ofthe deoree of order appealed from. the State or Divisional Court shall be presented within 60 days ‘An appeal t0 decree or order appealed from. from te date of the shall be presented within 90 days from the ‘An appeal to the Supreme Court thie of the decree or order: appealed from. » InU Pu Lay v Daw Chit case ® the Court held that an appeal sal be deemed tote presented in time although the copy of decree was granted to present after the remorandum of appeal was accepted. In the ease of U Ba Nyan and one v Daw Aye Aye Myint ™ it was held that athough the appeal presented beyond the limitation, the appellant did not present sfidavit for the permission of such appeal. ‘Therefore, as there is not presented sulin reason to permit an appeal beyond the limitation, this appeal is dismissed by the fst appellate Court, the Township Court. This order is correct. mt ae ES $8.2) ease ( (ofthe Lam Amending ofthe inition Act, SPDC, Law No.2 2» pam Cour, the Union of Myanmar 7-3-2008). * ilar ¥ Daw Chit,1976, BL, pal second. 15 Nyan and ane v Daw Aye Aye Myint 1976, Chit lapel (Mandalay).84 case of Daw Tin Mya v U Aye Maung, °8 Ine eyait Toms Gaia U Aye Maung filed an appeal pe ings Toone NP ‘ownship Court on (16.6.83) from the ord . \e order made ion bY Independent Quarter, Court from (30,6. 80). The period of limi a : ; : of limitation os TH appeal is too expired than the granted Limitation. Bu the Towne is the memorandum of appeal, Ths is invalid : gecided oo U Win Han and inthe ease of U Win Han and one v Daw Nyunt Nyunt Tn, the ground for al uit ses to consider the question of limitation is the important to decide the poles ‘and when the Appellate Court may decide such question. win jhe Court held that the main determination question is whether the case rset By He respondent in this case is within or beyond the limitation. The eso of Hittin is material question to decide the whole case. Ifthe original omits 1 decide, oF decides wong, or having the fat of the dmision cea, ie ial appellate Court may decide. In the case of U Boo Sein and five others v Mg Aye (alia) Inn Inn Key,” case yas held that according to the Section 24 of the Yangon City Civil Court Act, the dares passed by that Court must be appealed within 30 days. Although the decree vos passed any day, the Himitation must be commuted atthe date of passing the judgment. ipentough te fact that a deeree has not been drawn up. If it may not be applied and imitation is over, it is the duty of the defaulter. ‘Therefore an appeal should be filed within the limitation. The determination of ‘The applicant has actually made an application for a copy of the decree the ls the time of limitation is the important view in the case for the finding of the real dispute. An appeal may be said to have been properly presented if is fled within the pecod prescribed under the Limitation Act. If it is filed beyond the prescribed date, it isbared and hence, there cannot be a proper presentation of appeal. But, according to the Section 5 of the Limitation Act, 1909, any appeal or ‘pplication for a review of judgment or for leave to appeal, or any other application to vith this section may be made applicable by or under any enactment for the time being in force may be admitted after the period of limitation prese When the appellant or applicant satisfied the Court that he had sufficient cause for not refering the appeal or making the application within such period. ribed therefore, Sa eenet 5 x Mya Tin vU Aye Maung, 1984 [Link], P 178. » jit Han and one v Daw Nyunt Nyunt Tin, 1991, MLR, S.C, p-166. co Sein and five others v Mg Aye (ali) Inn Inn Key, 1971, BR, p-121-jnthe case of U Ave Kyaw and one » Ma Bq p 85 fe Than, 3% oe eee But Supreme Cout granted such ayy He ond 16 suet 0800 bY Seton 5 Of the Lining eh appeal en the gound of precise about the limitation, Hon Act. Therefore such appeal summarily after examining the pleader of an appellant. In rt dismissed an | In further appeal the gqsisal judgment or decree of the Divisional Court, the Centra Co agli Court has the right to adjudicate whether the application of = oe sean the Limitation is sufficient reason or not the pation of appeal by a ais Sevtion 100 of the Civil Procedure Code against the dismissal judgment or eee ofthe Divisional Court, ‘Therefore the appellant must present appli 7 ion of appeal during the period of jjtton. But although it is filed beyond the time of the limitation, it may receive and consider on the sufficient cause by S 5 of Limitation Act, Sufficient causes based cathe real reason, without negligence. 45 Admission, Rejection and Abatement of Appeal (1) Where a memorandum of appeal is admitted, the appellate Court or the pope officer of that Court shall endorse thereon the date of presentation, and shall register the appeal in a book to be kept for the purpose. 2) Such book shall be called the Repstr of Appeals ‘A memorandum of appeal which has not been registered is not to be regarded ssaappea, The Court can reject an appeal alert as ben egitere." Therefore when the memorandum of appeal is admited, it must be registered ‘nthe Register of Appeals by the proper officer. Prva > UAye Kyaw and one v Ma Ba Be Than 1990 Civil Miscellaneous Appea! No * ollseyDew hin Lat and three thers 1984, LRP 133 ~ “vil Procedure. 75, Mandalay.ta et ey ; sion, without fixing @ date for on sie a of lint jstime-barred he should admi ele tte is tiene Ait he ere tt "We thinks thatthe for hearing the appellant on the WeStION Of fimiree Ve Valid, iii oie suing noil> the respondent. The wig it Oe XU, Rute 11 by any sufficient cause from ‘npearing when the appeal was called on for hearing o fom Aepositng the sum so ‘eure, and the Court shall readmit the appeal on uch tems as to cout or otherwise as it thinks fit, ‘Therefore an appeal ‘may not be rejected on the ‘ground of limitation at the time of admission, without fixing a date for hearing the appellant. It may adniton the wound of sufficient reason even beyond the limitation of an application. But the Court may even reject after had been registered appeal, When the appellant does not ‘ppear in an appeal called for hearing, the Court may dismiss an appeal and when the sppellant appears and the respondent does not appear, the appeal may not be dismissed. It may be ex-perty. An appeal may be dismissed the failure to deposit costs ofthe appellant. ‘| Ita respondent dies and his representatives are not impleaded within tin, the ‘ppealabates automatically as against him on the expiry ofthe statutory period and it er thatthe appeal has iS not necessary for the Court to pass a formal ord pod . = ts ‘ated, However, it is open to the appellant to have the © AIR Commamminn Tue Cole aii Proce 5° tin 151, VOL Ip. 327.9528 = Tt Civil Proc AR, Commentaries, The Code of Civil87 . under Order XXII, application | Rule 9 of the Civil Procedure Cod le. The oot ther an appeal can oF cannot proceed i : oP va of one of the respondents who has died ool ae "age and i impossible to lay down a genera a ao ae of 900 gust depend upon its ow circumstances = ot . te ease of Mariappa Chettiar and two others y Seir Veg I sur others “ the case was held that if a case comes lalate pe ose of the Code of Civil Procedure the ppl wil nt abe a ae h the legal representative ofthe deceased appellant isnot brought on eins the right of appellant survives to the surviving appellants, On and if the case falls under Rule 4 where one of the appellants ded andthe ge otter ; eco appeal doesnot survive 10 the remaining appellants, the appeal wl bate so fpras the deceased appellant is concerned if no application for substitution is made wit time. tn the case of U Mya Khin and two others v U Chit Mya and one * the uni fled the suit to remedies fr the declan tat Daw Ma Ma Gyce was rote owner of the property in dispute and selling such property to U Chit Mya is sot valid, The second remedies depend on the fist remedies. Where she ded, her gal resentative was not substituted inthe suit, So U Mya Khin cannot matin the fit remedies. And then she is the main party inthe suit. U Mya Khin's second remedies cannot maintain without her legal representative, The case cannot be offcily decided. Therefore, the whole appeal of U Mya Khin was abated Inthe case of Daw Met Kyawn Mon v Daw Nan Po and two, “ Daw Met turing the time of appeal filed suit for declaration of Kyawn Mon who died i the daughter in law Daw Nan Po and grand children, Ma pssession of land against ‘Nin Kyun and Ma Nan Swe and ejectment ftom the land, The suit fie. It was filed tm appeal, The appeal was held that the appellant filed in original suit The relief on a appeal is the same with that in an original suit. Therefore, the right of appeal ‘bated at the time of appellant died. i cone Chiara oor v Ss Vi Naran das Desa and four others 1966, LR, 1983, BLLR,p.ll7 U Mya Khin and two it : others v U Chit Mya and one, Daw Met Kyawn Mon v Daw Nan Po and two 1989, MLR, p35.sapower of Appellate Courts (1) Subject to the conditions and limitations as civil Procedure Code, appellate Court shall have powers {on deteminea case finaly, (j toremand a case, (c) to frame the issue and refer them for til, and (Sto take additional evidence orto require such evidence to be taken (2) Subject as aforesaid, the appellate Court shall have the same powers and shell perform as nearly as may be the same duties a ae conferred and imposed by the Code on Courts of original jurisdiction in respect of suits instituted therein” The exercise of powers of appellate Court under Section 107 to remand a case orto frame issues and refer them for tral or to take additional evidence or require evidence to be taken is regulated by the provision of Order XLI, Rules 23 to 25 and 27. The Court of second appeal is the same powers as that of the first appeal. The power given to an appellate court under Section 107 is only part of its appellate jurisdiction, ‘The powers contemplated under sub-section (1) (a) of Section 107 have to be subject to the powers contained in Rules 4, 24 and 33 of Order XLI of the Civil Procedure Code. Thus, the appellate court has the following powers, ()Ttmay reserve or vary the decree in favour ofall the plaintiffs or defendants, asthe case may be, when any one of the plaintifis or the defendants appeals from the whole decree. Gi) tmay finally determine the suit where evidence on record is sulficent, ee eee © ‘Seton 107 ofthe Code of Civil Provedower to pass any decr 89 o* ra even thought ree or make any order whi i © appeals as to part ony of th ich ought to have been i of Jor parties although they may not have fled any decree and in favour of ‘The powers contemplated under Section 107 (6) ee or objection. of the Civil Proved Ne to connect wit fare Code. An appetite Cour is i fae at liberty to remand a gis Rule 3 al court in the following cases. pote ipso of the justice so requires omen sisoftbe parties; the trial court has decided only a part of several issues raised by the y ane record of the case cannot unabi le the appellate Court to determine the findings on those issues are reversed by the appellate Court. pleadings filed in the trial Court are defective but can be made good by mi y gap wen the 1d the appellate Court considers that they should be amended, venient 2 nen there is absence 0 (0 when an involved questio necessary parties or misjoinder of parties n of facts must be determined before judgment can be sive ay-when the tia Court has omited 0 record a specific fining upon a material issue of facts when it has made findings which leek precision or which mix facts with (ii) inferences (a) when the findings are not su {o when the evidence which might have {ficiently specific; and ‘been material to the issues involved inthe case which excluded. ” ‘The appellate Court has the power 1° take additonal evidenoe in any sage of sppal for the purpose of finding out the eal question of dispute, The original Court tas not able to take such evidence if the Court has taken and examined the evidence at the hearing of original suit. (1) The parties to an appeal shall not be enti evidence, whether oral or documentary in fhe pele Coat Bat i= : (@) the Court from whose deere? the appeal is preferred has refused to admit ‘vidence which ought to have bee? admitted, oF rt, 613 nee 1 BN ane, ivi ppels and Revisions! id, pp. 613-614.90 este atonal evidence, and the power cannot be exercised onan application ey ae the appeal is heard. The rule cannot be used for the purpose of opera © remedy defects or gaps in the evidence or to produce evidence eb might have been produced inthe original Cou, ‘According to Section 107 (A) of the Code of Civil Procedure, the appellate out sall have the power to take additional evidence orto require such evidence to se taken. In the case of U Maung Gale v U Kyaw * where a memorandum of appeal yas filed describing the appellant as represented by a next friend and the appellant applied to cure the defect by deleting the surplus words by the next friend. The Court held that the defect or irregularity in the memorandum of appeal having been bona Jide the amendment should be allowed. The Court has ample power to correct the enor under Order I, Rule, 10 of the Civil Procedure Code and in a view of the provisions of Section 107 (2) of the Code of Civil Procedure the appellate Court has the same powers and duties as the Court of Original jurisdiction. According to Order XLI, Rule 20 of the Civil Procedure Code, where it ‘ppears to the Court at the hearing that any person who was a party to the suit in the out ftom whose decree the appeal is preferred, but who has not been made a party '© the appeal is interested in the result of the appeal, the Court may adjourn the ‘eating to a future day to be fixed by the Court and direct such person to be made a "spondent, eee ee 2 pg XU ule 27 (1 ofthe Code of Civil Procedure * yyygead others v U Nyo ,1935, ALR, Ren, p21. me Gale vU Kyaw 1949, BL, H.C, p.632.gute AME Me Win he fn . sexta te ary in an sppea beyond iy re in be case of Daw Hive Kin y py, nition 8 ean Order 3 partis in an appeal under Order XL, Rute 3p Of th Of the Ci ern berpeaed the valuable rghs which tad oy oe The Appellate Court has not also the power to add sepondent died (13-10-02), The out held that this appeal clears that it wae fed spit the deceased respondent after his death, Therefore the Appelt Cout ha ne the power to oa i teeal representative against a deceased person in an appeal after tisdath. The Civil Misellaneous Application aginst the deseasedU Ha Mar ala Than Tun Aung who had died at the time this application is illegal andthe Appellate Court may not add the legal representative for the deceased respondent, ‘Therefore according to the above mentioned, the appellate Court may exercise the power granted under the law. The salient point ofthe power of appellate Court in tbking the additional evidence is that the Court is not normally entitled to undertake suh evidence. The appellant Court may not the power to add the legal representative ofthe deceased respondent in an appeal filed after his death. 33 Second Appeal The provision regarding to second appeal are provided in Sections 100, l0land 102 of the Civil Procedure Code. zi en ‘ (1) Save as otherwise expressly provided in the body of i a i ieto Procedure Code or by any other law for the time being in free, an appeal shall li SoMa sce etasiey s 49 (51) Daw Hiwe Khin v Da Mya, 1990, MLR, S.C P. MLR, $B, p258. *UMAnslanv U Ha Mar (alia) ran Tun Aung and one, 2003,