Chapter 15: Appeals
1. Definition and Nature of Appeal
• Meaning: An appeal is a judicial examination of a decision by a
higher court.
• Not an Inherent Right: It is a statutory right and must be
provided for by law.
• Distinction from Revision, Review, and Reference:
o Appeal: continuation of the original proceeding.
o Revision: supervisory jurisdiction.
o Review: re-examination by the same court.
o Reference: for doubtful legal questions.
2. Types of Appeals
• First Appeal (s.96, s.96A, s.97, s.99A):
o Lies from original decree passed by trial courts.
o Includes both questions of fact and law.
• Second Appeal (s.100):
o Lies from decrees passed in appeal.
o Can only be on a substantial question of law.
• Appeals from Orders (s.104–106):
o Certain appealable orders listed in Order 43 Rule 1.
o Others are barred (non-appealable).
• Appeal by Indigent Person (Order 44):
o Allows paupers to appeal without payment of court fees.
• Appeal to the Appellate Division:
o Requires leave to appeal under Article 103 of the
Constitution.
o Final adjudication by the apex court.
3. Who Can Appeal?
• Any aggrieved party:
o One whose right or interest has been adversely affected by
the decree.
• Includes legal representatives or successors.
4. Procedure and Scope
• Filing Procedure:
o Memorandum of appeal with grounds.
o Accompanied by certified copies of judgment/decree.
• Powers of Appellate Court (Order 41 Rule 33):
o Can reverse, confirm, vary the decree.
o May remand the case.
o May take additional evidence (Or 41 R 27).
• Remand and Rehearing:
o If lower court failed to determine issues or committed
procedural error.
5. Substantial Question of Law (for Second Appeal)
• Mere misreading or misappreciation of evidence not enough.
• Must be a significant legal issue affecting the case.
6. Limitations and Restrictions
• Section 100(1): Limits second appeals to substantial legal
questions.
• Section 99 & 99A: No appeal on procedural errors unless injustice
is caused.
• Barred Appeals: Some orders explicitly made non-appealable.
7. Doctrine of Merger
• Decision of lower court merges into that of the appellate court once
appeal is decided.
8. Judicial Precedents
• Numerous Bangladeshi case laws interpreting:
o "Aggrieved person"
o "Substantial question of law"
o Appellate court’s powers and limits
o Bar to appeal in procedural irregularities
Separated Precedents with Footnote
References
General Nature of Appeal
1. Md Mohsin v State (1981) 33 DLR (AD) 304
→ Establishes that appeal is a statutory right, not an inherent one.
Footnote 2
2. Alhaj Idris v Bangladesh (1983) 35 DLR (AD) 125
→ Clarifies that appeal is continuation of the suit.
Footnote 3
3. Dewan Abdul Khaleque v Customs (2003) 55 DLR (AD) 14
→ Reaffirms that the right of appeal must be conferred by law.
Footnote 4
Who Can Appeal / Aggrieved Person
4. Abdul Hamid v Zainul Abedin (1987) 39 DLR 274
→ Only an aggrieved person can appeal.
Footnote 8
5. Nurul Islam v Bangladesh (1991) 43 DLR 534
→ A party affected adversely by a decision has the right to appeal.
Footnote 9
First Appeal
6. Chandra Mohan Saha v Mofizuddin (1984) 36 DLR 274
→ The appellate court must deal with both facts and law.
Footnote 11
Second Appeal & Substantial Question of Law
7. Md Ismail Mollah v Md Abdur Rahim (1991) 43 DLR (AD) 34
→ Second appeal requires a substantial question of law; factual
reappreciation barred.
Footnote 14
8. Moslemuddin v Most Khodeja Khatun (1996) 48 DLR 418
→ Misreading of evidence is not a ground for second appeal.
Footnote 15
Appeals from Orders
9. Akand v Mia (1990) 42 DLR 204
→ Only orders mentioned in Order 43 Rule 1 are appealable.
Footnote 17
Powers of Appellate Court
10. Md Ismail Mollah v Md Abdur Rahim (1991) 43 DLR
(AD) 34
→ Appellate court can interfere only on substantial legal error.
Footnote 14
11. Chandra Mohan Saha v Mofizuddin (1984) 36 DLR 274
→ Appellate court may remand where trial court failed in its duty.
Footnote 11
Appeal by Indigent Person
12. Nurul Islam v Bangladesh (1991) 43 DLR 534
→ Reiterates right of an indigent person to appeal under Order 44.
Footnote 9
Appeal to Appellate Division
13. Dewan Abdul Khaleque v Customs (2003) 55 DLR (AD) 14
→ Leave to appeal required under Article 103 of the Constitution.
Footnote 4
Doctrine of Merger
14. Alhaj Idris v Bangladesh (1983) 35 DLR (AD) 125
→ Once appeal is decided, lower court’s decree merges into the
appellate decree.
Footnote 3