POWERS OF APPELLATE COURT, SECTION 107, RULE 23 TO 33 ORDER 41 CPC 1908

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DR. TUSHAR MANDLEKAR EXPLAINS IN EPISODE 45 POWERS OF APPELLATE COURT, COURT ROOM BATTLES

POWERS OF APPELLATE COURT
Under Civil Procedure Code, 1908, the provisions which enumerate the powers of an appellate court while hearing first appeals. Sections 96-108 and Rules 23 to 33 of Order 41 of the Code conferred these powers.
• POWER TO DECIDE A CASE FINALLY
Section 107(1) (a) and Rule 24 of Order 41 facilitate the appellate court to set out of a case finally. Where the proof on record is adequate to enable the appellate court to pronounce judgment, it may finally conclude the case despite that the judgment of the trial court has proceeded completely upon a ground other than with the intention of on which the appellate court proceeds.
• POWER TO REMAND
Section 107 (1) (b), Rules 23-23A of the Code concerns about the power to remand, here remand means to send back. Rule 23 of Order 41 of the Code Confers that if the court of the trial has a case on a preliminary point without documenting findings on other issues and the court of appeal reverses the decision thus passed, it may refer the case back to the court of the trial to decide on additional matters and to conclude the case. This is called a remand.
• POWER TO ISSUES AND PASS ON THEM FOR TRIAL
Section 107(1)(c), Rules 25-26 concerns about this power. This is considered very necessary in cases where abstinence has been exercised by the lower court in performing its functions of framing any issue or attempting any matter or deciding some question of fact that is needed to be decided to dispose of the suit on merit. In all these circumstances, the court of appeal has the authority to frame issues for the lower court and may also fix a certain time limit whilst referring them for the trail. It is provided in section 107(1) (c) above.
• POWER TO TAKE ADDITIONAL EVIDENCE
It is conferred under section 107(1)(d), Rules 27-29. It is an appellate court’s power to take further evidence. Anything else, what we call it a general law is that such an appeal must be decided by the appellate court on the testimony provided by the lower court parties. Nevertheless, this exemption as provided for in Section 107(1) (d) has three requirements to be met by the parties presenting such additional evidence in the court of appeal which is, first, that the person demanding such admission of additional evidence should be able to demonstrate the reason why he was unable to produce it at first. Another condition is that the party concerned should have an opportunity to refute such additional evidence by admitting additional evidence. Third, empirical information must be important to solving the problem.
In this case,1 section 107 is an exemption to the general principle and empowers the court to take additional evidence or require such evidence to be taken subject to the circumstances laid down in Rule 27 of Order 41.

In Pramod Kumari v. Om Prakash, (1980)1 SCC 412 where the lower court has refused to take certain evidence on the ground of its late production, such rejection cannot be said to be unjustified and the appellate court should not interfere with the discretion of the lower court and admit such evidence.
• POWER TO MODIFY DECREE
Under the provision of the Code, Rule 33 of Order 41 entitles an appellate court to render whatever order it thinks fit, not only as between the appellant and the respondent however also as connecting one respondent and another respondent. An appellate court’s right to change a decision is very relevant. This power is an authoritative but discretionary force.
In Mahant Dhangir v. Madan Mohan,.. 1987 SCC 528. the court should not refuse to exercise discretion on mere technicalities.
• OTHER POWERS
Under section 107(2) of the Code enacts that over and above the aforementioned powers, an appellate court has identical powers as an original court.
Thus, an appellate court is empowered to re-appreciate the evidence, to add, transpose or substitute the parties, to permit to withdraw of proceedings, to return a plaint or memorandum of appeal for presentation to the proper court.
DUTIES OF THE APPELLATE COURT
• DUTY TO DECIDE APPEAL FINALLY
• DUTY NOT INTERFERE WITH DECREE FOR TECHNICAL ERRORS
. DUTY TO REAPPRECIATE EVIDENCE
1 Venkataraman v. A. Seetharama Reddy, AIR 1963 SC 1526.
2 (1980)1 SCC 412.
3 1987 SCC 528.
4 Madhusudan Das v. Narayanibai, (1983)1 SC 1716.
5 M. Narayana Gowada v. Shanthamma, (2011)15 SCC 476.
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Really sir understood ur points properly....superb explanation 👌thank u so much sir

sushmaravidoddamani