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Appeal From APPEALLATE Decree

The document outlines the provisions of Sections 100-103 and Order XLII of the Code of Civil Procedure, 1908, which govern second appeals to the High Court, emphasizing the requirement of a substantial question of law for such appeals. It details the limitations on the scope of second appeals, the definition of a substantial question of law, and the procedural requirements for framing and notifying these questions. The provisions aim to ensure judicial efficiency and prevent prolonged litigation by restricting the High Court's role to legal issues rather than factual determinations.

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22 views5 pages

Appeal From APPEALLATE Decree

The document outlines the provisions of Sections 100-103 and Order XLII of the Code of Civil Procedure, 1908, which govern second appeals to the High Court, emphasizing the requirement of a substantial question of law for such appeals. It details the limitations on the scope of second appeals, the definition of a substantial question of law, and the procedural requirements for framing and notifying these questions. The provisions aim to ensure judicial efficiency and prevent prolonged litigation by restricting the High Court's role to legal issues rather than factual determinations.

Uploaded by

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Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Appeal from Appellate Decrees under Sections 100–103 and Order XLII

of CPC

Introduction
The Code of Civil Procedure, 1908, provides a hierarchical system of appeals to ensure fairness
and correctness in judicial decisions. After a decree is passed by a trial court, an aggrieved party
may file a first appeal. If still dissatisfied, a second appeal may be filed, but only under strict
conditions. Sections 100 to 103 and Order XLII of the CPC specifically govern the procedure,
scope, and limitations of second appeals (appeals from appellate decrees) to the High Court.
These provisions aim to balance the right to appeal with the need for finality in litigation.

Section 100: Second Appeal

Text and Structure


Section 100(1):
A second appeal shall lie to the High Court from every decree passed in appeal by any court
subordinate to the High Court, only if the case involves a substantial question of law.
Section 100(2):
An appeal may also lie from an appellate decree passed ex parte.
Section 100(3):
The memorandum of appeal must precisely state the substantial question of law involved.
Section 100(4):
If the High Court is satisfied that a substantial question of law is involved, it shall formulate that
question.
Section 100(5):
The appeal shall be heard on the questions so formulated, and the respondent may argue that the
case does not involve such a question. However, the court may, for recorded reasons, hear the
appeal on any other substantial question of law not formulated earlier.

Scope and Judicial Interpretation


Section 100 marks a significant departure from the earlier law by strictly limiting the scope of
second appeals. The High Court’s jurisdiction is now confined to cases involving a “substantial
question of law.” The intention is to prevent the High Court from acting as a “third court of
facts.”

Substantial Question of Law


The Supreme Court in Hero Vinoth v. Seshammal (2006) 5 SCC 545 clarified the meaning of
“substantial question of law.” The question must:
• Be of general public importance, or
• Directly and substantially affect the rights of the parties, or
• Not be settled by the Supreme Court or the relevant High Court, or
• Call for discussion of alternative legal views.

If the question is merely about the application of settled legal principles or is obviously
untenable, it is not a substantial question of law.

Case Law: Bhagyashree Anant Gaonkar v. Narendra @ Nagesh Bharma


Holkar & Anr. (2024)
In this recent case, the Supreme Court reiterated that the High Court cannot reappreciate
evidence or decide questions of fact in a second appeal. The High Court must confine itself to the
substantial question(s) of law framed at admission. The Karnataka High Court was found to have
erred by treating a second appeal as a first appeal, delving into factual matters without framing or
answering any substantial question of law.

Framing of Substantial Question of Law


In Kshitish Chandra Purkait v. Santosh Kumar Purkait (1997) 5 SCC 438, the Supreme Court
held that framing and notifying the substantial question of law to the opposite party is
mandatory. Failure to do so is a violation of natural justice.

Further Clarification: Raghavendra Swamy Mutt v. Uttaradi Mutt (2016)


11 SCC 235
The Supreme Court held that if the High Court does not find a substantial question of law at the
time of admission, it is obliged to formulate one if it arises during the hearing.

Tests Laid Down by the Supreme Court


The leading case is Sir Chunilal V. Mehta & Sons Ltd. v. Century Spinning & Manufacturing
Co. Ltd. (AIR 1962 SC 1314), where the Supreme Court laid down the following test:

“The proper test for determining whether a question of law raised in the case is substantial
would, in our opinion, be whether it is of general public importance or whether it directly and
substantially affects the rights of the parties and if so whether it is either an open question in the
sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or
is not free from difficulty or calls for discussion of alternative views. If the question is settled by
the highest court or the general principles to be applied in determining the question are well
settled and there is a mere question of applying those principles or that the plea raised is
palpably absurd the question would not be a substantial question of law.”
This test has been consistently followed in later cases, including Hero Vinoth v. Seshammal
(2006) 5 SCC 545, where the Court emphasized that a substantial question of law must be
“essential, real, of sound worth, important or considerable,” and not merely academic or trivia

When Is a Substantial Question of Law Not Involved?

• If the question is already settled by the Supreme Court or other binding precedents.
• If the issue is about the mere application of settled law to facts.
• If the plea is obviously untenable or absurd.
• If it is purely academic or does not affect the rights of the parties12569.

Exceptions and Judicial Intervention


While the High Court generally does not interfere with factual findings, exceptions exist.
Intervention is justified if:

• The lower court’s finding is based on no evidence.


• The finding is perverse or unreasonable.
• The lower court ignored material evidence or misapplied settled legal principles

Section 100-A: Bar on Further Appeal


Section 100-A bars any further appeal where a single judge of a High Court has decided an
appeal from an original or appellate decree or order. This provision ensures finality and prevents
endless litigation.

Section 101: Second Appeal on No Other Grounds


Section 101 strictly states that no second appeal shall lie except on the grounds mentioned in
Section 100. This means that appeals cannot be filed on questions of fact or other grounds not
involving a substantial question of law.

Section 102: No Second Appeal in Certain Cases


Section 102 further limits the right of second appeal by providing that no second appeal shall lie
from any decree when the subject-matter of the original suit is for the recovery of money not
exceeding ₹25,000. This provision aims to reduce the burden on the courts by excluding low-
value monetary claims from the purview of second appeals.
Section 103: Power of High Court to Determine Issues of Fact
Section 103 is an exception to the general rule that the High Court cannot interfere with
questions of fact in a second appeal. It provides that the High Court may determine any issue of
fact necessary for the disposal of the appeal if:

• The evidence on record is sufficient, and


• The issue has not been determined by the lower appellate court, or
• The issue has been wrongly determined by the lower courts due to an erroneous decision
on a substantial question of law.

Case Law: Ramathal v. Maruthathal (2018) 18 SCC 303


The Supreme Court clarified that Section 103 empowers the High Court to decide factual issues
only when findings by the lower courts are perverse or suffer from material irregularity, and only
if the record is sufficient.

Order XLII: Appeals from Appellate Decrees


Order XLII provides the procedure for second appeals:

Rule 1: Application of Order XLI


The rules of Order XLI (which governs first appeals) apply to second appeals, as far as possible.
This includes provisions relating to the form and content of appeals, powers of the appellate
court, and procedures for hearing.

Rule 2: Framing of Substantial Question of Law


At the time of making an order for hearing a second appeal, the court must formulate the
substantial question of law as required by Section 100. The appeal is generally confined to these
questions, and the appellant cannot urge any other ground without the court’s leave.

Rule 3: Reference to Court of First Instance


References in Order XLI to the “court of first instance” are to be understood as references to the
court to which the first appeal was preferred, in the context of second appeals.

Conclusion
Sections 100 to 103 and Order XLII of the CPC establish a rigorous framework for second
appeals, confining them to substantial questions of law and restricting the High Court’s role as a
fact-finding authority. The legislative intent, reinforced by judicial pronouncements, is to ensure
that litigation is not prolonged by repeated factual inquiries and that only significant legal issues
reach the High Court at the second appellate stage. The procedural safeguards, such as the
mandatory framing and notification of substantial questions of law, uphold the principles of
natural justice and judicial efficiency. Thus, these provisions strike a balance between the right to
appeal and the need for finality and certainty in civil litigation.

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