TYPES OF APPEALS UNDER THE CODE OF CIVIL PROCEDURE, 1908

INTRODUCTION:
Any person who feels aggrieved by any decree or order of the court may prefer an appeal in the
superior court if the appeal is provided against that decree or order. A right to appeal is not a
natural or an inherent right. An appeal is a creature of the statute and there is no right of appeal
unless it is given clearly and in express terms. It is a vested right and accrues to the litigant and
exists as on and from the date the lis commences.
The term appeal has not been defined in Civil Procedure Code but it does mean a proceeding
taken before a Superior Court or authority for reversing or modifying the decision of an
inferior court or authority on ground of error.1
It has also been defined as judicial examination of the decision by a higher court of the
decision of an inferior court.2
Law Dictionary by Sweet defines appeal as a proceeding taken to rectify an erroneous
decision of a court by submitting the question to a higher court or Court of appeal.3
Their Lordships of the Privy Council defined the term appeal in Nagendra Nath Dey v. Suresh
Chandra Dey4 as any application by a party to an Appellate Court, asking it to set aside or
revise a decision of a Subordinate Court, is an appeal within the ordinary acceptance of the
term.
In Garikapatti Veeraya v. Subbiah Chaudhary,5 the Supreme Court of India has defined the term
as a proceeding by which the correctness of the decision of an inferior court is challenged
before a superior court.
The right to appeal must at this juncture be compared and distinguished from a right to file a suit.
As said, the right to appeal is a statutory right and any such right must have the express authority
of law. The right to sue is however an inherent right and no express authorization from any
statute may be required to institute a suit. It is enough that no statute expressely bars the
institution of such suit.

1.
2.
3.
4.
5.

Legal Glossary, (1992) op cit p. 22.

Chambers 21st century Dictionary (1997) p. 59.
Cited in Namamal v. Radhey Shyam, AIR 1970 Raj 26.
AIR 1932 PC 165.
AIR 1957 SC 540.

ESSENTIALS OF APPEAL
According to Louis Blom6 every appeal has three basic essentials:
1. A decision ( usually a judgment of a court or a ruling of an administrative authority);
2. A person aggrieved ( who is often, though not necessarily, a party to the original
proceeding); and
3. A reviewing body ready and willing to entertain an appeal.

RIGHT OF APPEAL
The right of appeal is one of entering a Superior Court and invoking its aid and interposition to
redress the error of the court below. Being a substantive statutory right it has to be regulated in
accordance with law in force at the relevant time.7 It is a general principle of law that a right of
appeal is not to be assumed in every matter which comes under the consideration of a court.
Appeal cannot be preferred as a matter of right. Appeal can be preferred only where a right of
appeal is conferred by a statute or a rule having the force of a statute or a rule having the force of
a statute or authority equivalent to a statute.8 It has been held by the Allahabad High Court in
Zair Hussain Khan v. Khurshed Jan,9 that:
Unless a right of appeal is clearly given by statute it does not exist, where as a litigant has
independently of any statute a right to institute any suit of civil nature in some Court or another.
Provided its cognizance is not barred expressly or impliedly under Section 9 of the Code.10 No
right of appeal can be given except by express words.11
Where during the pendency of an appeal there is a change in the law there the Supreme Court of
India held in Laxmi Narain v. Niranjan Modak,12 that it is necessary to consider such change in
law and that law will regulate the right of the parties.

6. Final Appeal: A study of the House of Lords in its Judicial capacity.

7. K.D Kalam v. S.S Gujar,AIR 1999 SC 2213.
8. Raja Himanshu Dhar Singh v. Addl. Registrar, AIR 1962 ALL 439.
9. (1906) ILR 28 All 545.
10. Smt. Gangabai v. Vijay Kumar, AIR 1974 SC 1126.
11. Narayan v. Secretary of State, (1896) ILR 20 Bom 803.
12. AIR 1985 SC 111.

Under the Code of Civil Procedure, the following are the provisions relating to the right of
appeal:
1.
2.
3.
4.
5.
6.

Sections 96-112 and Orders 41 to 45.

First appeals: Ss. 96-99A, 107 and Order 41.
Second Appeals: Ss. 100-103, 108 and Order 42.
Appeals from orders: Ss. 104 , 108 and Order 43.
Appeals to the Supreme Court: Sections 109 and order 45.
Appeals by indigent people: Order 44.

PROCEDURE RELATED TO APPEALS13

The appeal being the continuation of suit is held not without any reason; it may be examined in
the light of following propositions:
The appellate court has all the powers and has to do all things necessary that the trial
Court has and has to do. In this sense, even when the case goes on appeal, it is just the
name that has undergone a change, the form and substance still remains the same.
In the same vein as above, the appellate court has to do all that has been done by the trial
court in that particular case, and then either agree or disagree from the trial court.
Hence, even the appellate court has to write a judgment and pass a decree. In the event of
the court upholding the lower courts decision, the appellate court may write down the
same decree, without changing it, and the decree will now be deemed to have been that of
the appellate court.
Finally the suit is not deemed to be finally concluded for matters of res judicata till the
appeals are over. This implies that it is deemed that the same suit is progress even while
the appeals are on. It is only when the courts have finally come to a conclusion, after all
possible appeals have been used and tried by then appellant that the suit is said to have
been conclusively decided.

When does right to appeal to appeal accrues to any person?

As soon as judgment is pronounced against party, right to appeal arises. Right to appeal doesnt
arise when adverse decision is given, but on the day suit is instituted i.e. proceedings
commenced, right to appeal get conferred.. The right to appeal can be waived by a party under a
legal and valid agreement, and if a party has accepted the benefits under the decree, he is stopped
from challenging its legality. The right to appeal also stands destroyed if the court to which
appeal lies is abolished altogether without any forum being substituted in its place.

13. http://www.academia.edu/6004824/Vijeth_CPC_Appeals_under_Civil_Procedure

Who may Appeal?

The section does not refer to the persons who can prefer appeal. As a rule it is only a party to the
proceedings in the primary Court or Tribunal who has the right to file an appeal against the order
of the Court or the Tribunal provided of course he is aggrieved by it and if any other person
happens to feel aggrieved by that order and his interest are affected thereby, he can also file an
appeal against it only by the leave of the Court and not otherwise.
Any party to the suit prejudicially or adversely affected by the decree or if such party is
dead by his legal representative.14
A transferee of the interest of such parties who so far as such interest is concerned is
bound by the decree, provided his name is entered on the record of the suit.15
An auction purchase may also appeal from an order in execution setting aside the sale on
the ground of fraud.16
In Kaleidoscope India Pvt. Ltd. v. Phoolan Devi,17 the trial court judge prohibited the exhibition
of film both in India and Abroad. Subsequently a party who moved in appeal did not have locus
standi. It was reversed by division bench saying that it is not proper on the part of the judge as he
entertained the suit on which party has no locus standi.

LEADING CASE LAW ON RIGHT TO APPEAL

State of Bombay v. Supreme General films and Exchange18
In this case it was held that right to appeal cannot be taken away, if available on the date of
institution of suit and subsequently law passed taking away right to appeal.
Delhi cloth and General Mills v. I.T Commissioner19
Where right to appeal is created subsequently shall not be available to a litigant if the suit was
instituted prior to such creation.

14. Section 146 of the Code of Civil Procedure.

15. Maheshwar v. kushaba, (1978) 2 Bom 248 (250).
16. Mulla op cit p. 463.
17. . AIR 1995 Delhi 316
18. AIR 1960 SC 980
19. AIR 1927 PC 242
Veeraya v. Subbia Choudhary20

Right to appeal gets vested on the date the suit is instituted. A new right to appeal gets created
cant be availed by the parties to the proceeding which commenced earlier during the creation of
new rights.

KINDS OF APPEALS
In Code of Civil procedure provision has been made for the following kinds of appeals:
1. First appeal or appeals from original Decrees (Section 96-99, Order 41)
Preferred in the court superior to the court passing the decree.
No appeal lies where the decree has been passed with the consent of the parties.
No appeal lies in any suit of the nature cognizable by the Courts when the value
of subject matter of original suit does not exceed ten thousand rupees.
2. Second appeal or appeals from Appellate Decrees (Section 100-103, Order 42)
Save as otherwise expressly provided in this Code, an appeal shall lie to the High
Court from every decree passed in appeal by any Court subordinate to the High
Court, if the case involves a substantial question of law.
An appeal may lie under this section from an appellate decree passed ex parte.
In an appeal under this section, the memorandum of appeal shall precisely state
the substantial question of law involved in the appeal.
Where the High Court is satisfied that a substantial question of law is involved in
any case, it shall formulate that question. The appeal shall be heard on the
question so formulated and the respondent shall be allowed to argue that the case
does not involve such question.
The second appeal is on question of law alone.
3. Appeals from Orders (Section 104-106, Order 43, Rule 1-2)
Appeal from orders would lie only from the following orders on ground of defect or
irregularity in law

An order from Section 35 A of the Code and order under Section 91 or 92

refusing leave to institute suit of the nature referred in Section 91 or 92.
An order under Section 95 for compensation for obtaining attachment or
injunction on insufficient ground.
An order under the code imposing a fine or directing the detention or arrest of
any person except in execution of decree.
Appealable orders as set out under order 43.

However, no appeal shall lie from the following orders:

Any suit of the nature cognizable by Courts of Small Causes, when the
amount or value of the subject-matter of the original suit does not exceed
three thousand rupees

 From any order passed in appeal under Section 100.

4. Appeals to Supreme Court (Sections 109 and 112, Order 45) would lie in following
cases:
From any decree or order of the Civil Court when the case is certified by the
Court deciding it to be fit for appeal to Supreme Court or when special leave is
granted under Section 112 by the Supreme Court itself.
From any judgment, decree or final order passed on appeal by High Court or by
any other Court of final appellate jurisdiction.
From any judgment, decree or final order passed by a High Court in exercise of
original civil jurisdiction.
5. Appeals by Indigent persons (Order 44).21

FIRST APPEAL AND SECOND APPEAL

A first appeal lies against a decree passed by a court exercising original jurisdiction, a second
appeal lies against a decree passed by a first appellate court. Whereas a first appeal can be filed
in a superior court which may or may not be a High Court, a second appeal can be filed only in
the High court. A first appeal is maintainable on a question of fact, or on a question of law, or on
a mixed question of fact and law. A second appeal can be filed only on a substantial question of
law. No second appeal lies if the amount does not exceed Rs 25,000.22 No letters Patent Appeal is
maintainable against a judgment rendered by a single judge of the High court to a division
bench of the same court either in first appeal or in Second Appeal.23

20. AIR 1957 SC 540

21. Bar Council of Maharashtra v. Dabholkar, AIR 1975 SC 2092.
22. S. 102 as amended by CPC (Amendment) Act, 2002.
23. S 100-A.
Section 96: APPEAL FROM ORIGINAL DECREES
(1) Save where otherwise expressly provided in this Code or by any other law for the
time being in force, an appeal shall lie from every decree passed by any court exercising

jurisdiction to the court authorized to hear appeals from the decision of such court.
(2) An appeal may lie from an original decree passed ex parte.
(3) No appeal shall lie from a decree passed by the court with the consent of parties.
(4) No appeal shall lie, except on a question of law from a decree in any suit of the
nature cognizable by courts of small causes, when the amount or value of the subjectmatter of the original suit does not exceed Rs. 10, 000/- (as amended by 1999
Amendment).
The right to prefer an appeal from the judgment of the court of first instance is derived
from the provisions of Sec. 96 of the Code. The right of appeal is not a mere matter of
procedure, but it is a substantive right. However, as the remedy of appeal is a creation of
statute, it is not an inherent right of a person like the right of suit. Still it is a vested right
and can be taken away only by a subsequent legislation. If the Legislature in its wisdom
thinks in a particular case that no appeal should be provided, it cannot be held that the
legislation is bad [ Ishar Das v State AIR 1975 P&H 29]. The right accrues to a party
on the date of institution of the suit, although it may be actually exercised when adverse
judgment is pronounced. The right is governed by the law prevailing at the date of
institution of the suit. An appeal is considered as continuation of the original suit rather
than as the inception of a new action. The legal pursuit of a remedy, suit, appeal and
second appeal are really but steps in a series of proceedings all connected by an intrinsic
unit and are to be regarded as one legal proceeding.
A person 'aggrieved by a decree' has a right of appeal although the decree in specific term
may not have been passed against him (Aleemuddin v Haji Bashir Ahmad, 1977 All.
683). However the party appealing must have been adversely affected by the decree.
Appellate Jurisdiction :- An appellate jurisdiction is the authority of a superior Court to
review, reverse, correct or affirm the decision of an inferior Court. The interference by
the appellate court is usually on the 'question of law', and not on a 'finding of fact.' When
the trial court based its finding on appreciation of the evidence of the witnesses and it did
not merely draw an inference to judge the probability of the case, it was not open for the
appellate court to take a different view other than that taken by the trial court, unless it
found the view to be wholly unacceptable because of no evidence or appreciation of
evidence which was against the established principles of law (Santanu Kumar v Bairagi
Charan Das).24
24. AIR 1995 Ori 300.

New plea - The general rule is that the appellant cannot be allowed to raise in his
memorandum of appeal a new ground; nor can he raise in his memorandum of appeal any
objection which, if it had been taken in the trial court, might have been cured by appropriate

amendment. It is true that there are certain exceptions to this rule such as question of law,
question of limitation, res judicata, etc., which can be substantiated on the facts already on the
record. But a matter-which though of law depends upon questions of fact for its determination
cannot be raised for the first time in appeal [Mohmd Abdul Razack v Syed Meera Ummal].25
Appeal against an ex parte decree - In an appeal against an ex parte decree the appellant can
only be heard on the merits of the case. The appellate court cannot go into the question as to why
the appellant had not appeared on the date of final hearing before the trial court (Rajjan Lal v
Rukhmani Devi)26 .
Consent decree - According to Sec. 96(3), a consent or compromise decree is not appealable;
however, it may be set aside by a separate suit. The rule is based on the principle that a person
who gives his consent to a decree being passed against him, is later on estopped from
challenging the same. In order to set aside a consent decree on the ground that the consent was
obtained by coercion, fraud, etc., the proper remedy is to file a separate suit.
Alternative relief in appeal - If the plaint discloses that the plaintiff will be satisfied with
either of the reliefs claimed by him, he can't be allowed to appeal if one of the reliefs is granted.
One who gets what he wants cannot be said to be a "person aggrieved." But, if the plaint
discloses that of the alternative reliefs claimed one is the main relief and the other one is claimed
only if it is found that the main relief cannot possibly be granted and the main relief is refused, it
is open to the plaintiff to appeal and urge that he is entitled to the main relief (Union of India v
Garbu Sao)27.
Who cannot appeal - If a party agrees not to appeal or waives his right to appeal, he cannot file
an appeal. Where a party has accepted the benefits under decree of the court, he can be estopped
from questioning the legality of the decree.

25. (1966) 1 M.L.J. 565.

26. 1979 All. L.J. 1237.
27. AIR 1972 Pat 341.
Rules governing Appeals from Original Decrees (Order 41)
Order XLI (41) lays down the detailed rules governing appeals from original decrees.
(i) Memorandum of Appeal
The appeal is to be made in the form of a memorandum of appeal signed by the party appealing

(appellant) or his pleader, accompanied by a copy of the judgment (R.1). The memorandum must
set out the grounds of objection to the decree without setting out any argument or narrative. The
appellant cannot argue on any ground not so set out without the court's leave. However, the court
can rest its decision on other grounds also, provided that the party affected is given an
opportunity to contest the case on that ground (R.2). Where the memorandum is not properly
drawn up, it can be rejected or returned to the appellant for the purpose of amendment within a
fixed time (R.3).
(ii) Condonation of Delay in Appeal
If an appeal is presented after the expiry of the limitation period, it should also be accompanied
by an application for condonation of delay (R.3-A). An appeal can be admitted only after the
final determination of the question as to limitation. The object of this provision is two-fold:
firstly, to inform the appellant that the delayed appeal will not be entertained unless it is
accompanied by an application explaining the delay; and secondly, to communicate to the
respondent that it may not be necessary for him to get ready on merits as the court has to first
deal with an application for condonation of the delay as a condition precedent. The provision is,
however, directory and not mandatory. If the memorandum of appeal is filed without an
accompanying application for condonation of delay" the consequence is not necessarily fatal.
The defect is curable [State of M.P. v Pradeep Kumar (2000) 7 SCC 372].
(iii) Stay by Appellate Court
An appeal pending before an appellate court does not by itself, operate as a stay of the
proceedings under the decree appealed from. However, the appellate court does have the power
to stay execution of such a decree. Likewise, the court which passed the decree can also order a
stay of the decree pending an appeal therefrom. In any case, no such order for stay is to be
passed by the court, unless it is satisfied: (a) that substantial loss may result to the party applying
for the stay; (b) that the application has been made without unreasonable delay; and (c) that,
security has been given by the applicant for the due performance of such decree (R.5).
(iv) Procedure on Admission of Appeal
The court from whose decree an appeal lies shall entertain the memorandum of appeal and shall
register the appeal in a book called the register of appeal (R.9). The appellate court after fixing a
day for hearing the appellant and hearing him accordingly if he appears on that day may dismiss
the appeal (R.11 as amended by the 2002 Amendment). Similar would be the case when the
appellant does not appear on the day fixed for hearing. The appellate court shall record in brief
the grounds for dismissal.
If the appeal is not summarily dismissed, it shall be heard as expeditiously as possible and
endeavor shall be made to conclude such hearing within 60 days from the date on which the
memorandum of appeal is filed (R.11-A). The notice of the day fixed for hearing shall be sent by
the appellate court to the court from whose decree the appeal is preferred, and shall be served on

the respondent (this is akin to the service on a defendant of a summons) (R.14).

(v) Procedure on Hearing
The appellant shall be heard in support of his appeal. The court shall then, if it does not dismiss
the appeal at once, hear the respondent against the appeal, and the appellant shall be entitled to
reply (R.16). When the appellant does not appear on the day fixed for hearing, the appeal is to be
dismissed; if the appellant appears, but the respondent does not, the appeal shall be heard as ex
parte (R.17). The court may re-admit an appeal which has - been dismissed for default under
Rr.11 and 17 if the appellant could show sufficient cause (R.19). Similarly, where an appeal is
heard ex parte and the judgment is pronounced against the respondent, he may apply for rehearing (R.21).
Cross-appeal: If, after an appeal has been filed, a respondent to the appeal desires to prefer an
appeal and does prefer it, his appeal shall be called a cross-appeal. If the time for filing a crossappeal has expired, the respondent may file cross-objections. Under R.22, a respondent, though
he may not have appealed from any part of the decree, may not support the decree on any of the
grounds decided against him, but may take cross-objections to the decree which he could have
taken by way of an appeal, provided he has filed such objection in the appellate court within one
month from the date of service on him of notice of the day fixed for hearing the appeal. Such
cross-objection shall be in the form of a memorandum.
(vi) Judgment in Appeal
After hearing the parties, the appellate court pronounces a judgment in open court. Copies of the
whole judgment must be given to the parties (R.30). The judgment shall be in writing and shall
contain: the points for determination; the decision thereon; the reasons for the decision; where
the decree appealed from is reversed or varied, the relief to which the appellant is entitled
(R.31).
The judgment may be for confirming, varying or reversing the original decision (R.32). The
power may be exercised by the appellate court notwithstanding that the appeal is as to part only
of the decree, and may be exercised in favour of all or any of the respondents or parties, although
such respondents or parties may not have filed any appeal or objection (R.33).

(vii) Decree in Appeal

A decree follows on the judgment of the appellate court. The decree of an appellate court shall
contain (i) the date and the day of the pronouncement of the judgment (ii) number of the appeal,
names and description of the parties and a clear specification of the relief granted or other
adjudication made (iii) costs of the appeal and of the suit and by whom they are to be paid, and

(iv) the date and signature of the judge/judges who passed it (R.35).
A dissenting judge need not sign the decree; however, he must state his decision in writing in the
judgment and may also state the reasons for his dissent (R.34). Certified copies of the judgment
and decree in appeal are to be furnished to the parties on application to the appellate court and at
their expense (R.36). A certified copy is also to be sent to the trial court (R.37).
APPEALS FROM APPELLATE DECREES
(1) Save as otherwise expressly provided in this Code or by any other law for the time being in
force, an appeal shall lie to the High Court from every decree passed in appeal by any court
subordinate to the High Court, if the High Court is satisfied that the case involves a substantial
question of law.
(2) An appeal may lie under this section from an appellate decree passed ex parte.
(3) In an appeal under this section, the memorandum of appeal shall precisely state the
substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it
shall formulate that question.
(5) The appeal shall be heard on the question so formulated and the respondent shall, at the
hearing of the appeal, be allowed to argue that the case does not involve such question:
Provided that nothing in this sub-section shall be deemed to take away or abridge the power of
the court to hear, for reasons to be recorded, the appeal on any other substantial question of law,
not formulated by it, if it is satisfied that the case involves such question.
[Note: The above section is as after the 1976 Amendment, which has largely curtailed the right
of second appeal. However, the provisions of the Amendment Act of 1976 do not apply to second
appeals already admitted prior to the amendment and pending for hearing (Kamla Devi v Kushal
Kanwar AIR 2007 SC 663). This is so because a right of appeal is a substantive/vested right and
is not merely a matter of procedure. Thus, such right is governed by the law prevailing at the date
of filing of the suit or proceeding and it cannot be abrogated or curtailed by a subsequent
litigation].
The right to first appeal is unlimited, barring a few cases. However, the right to second appeal is
limited. In order to reduce the burden of superior courts and also to help litigants to save their
precious time and money, certain restrictions have been placed on the right to second appeal.
Most of the cases are decided finally at the level of the High Court. Only in rare cases, the right
of appeal is available to a litigant to come to the Supreme Court.
The Law Commission in its 54th Report observed that Sec. 100 is confined to the cases where a
question of law is involved and that question of law is substantial. An unqualified right to first

appeal may be necessary for the satisfaction of defeated litigant, but a wide right of appeal is
more in the nature of luxury. It was thought necessary that the second appeal may not become a
"third trial on facts" or "one more dice in the gamble" (Gurdev Kaur v Kaki AIR 2006 SC
1975).
The principle on which Sec. 100 is based is that there should be an end of litigation on the
question of fact even at the cost of occasional error. Sec. 100 is not based on realistic appraisal of
the character of the judgment of the subordinate court, and is based only on substantial question
of law. Sec. 101 of the Code lays down that no second appeal shall lie except on the grounds
mentioned in Sec. 100. Thus, no court has the power to abridge or enlarge the grounds of appeal
as are mentioned in Sec. 100. It has categorically been held that there is no jurisdiction to
entertain a second appeal on the ground of an erroneous finding of fact however gross or
inexcusable the error may seem to be. Sections 100 to 101 of the Code, therefore, lay down the
measure of finality where the decision turns on the balancing of evidence.
It is important to note that no second appeal lies from an order; it lies only from a decree.
Further, the decree against which the second appeal has to be filed should itself be an appellate
decree and such decree against which the second appeal is to be filed must have been passed by a
court inferior to the High Court before which the second appeal is to be filed.
No Interference with a Finding of Fact
The appellate court (i.e. High Court) can go into the question of law or legal procedure only; it
cannot re-examine the soundness of facts (howsoever erroneous the finding of facts or
conclusions of the trial court may be). Where the first appellate court arrives at conclusions
different from those recorded by the trial court and if the conclusions of the first appellate court
are fully supported by relevant and admissible material on record, the decision of the first
appellate court cannot be said to construe an error of law correctable by the High Court, while
hearing an appeal under Sec. 100 (Ram Raj V Hirdaya Narain, 1982 All. L.J. 1435).
It has been the consistent view of the Supreme Court that there is no jurisdiction to entertain a
second appeal on the ground of erroneous finding of fact, based 0E appreciation of the relevant
evidence [Kashibai v Parwatibai (1995) 6 SCC 213]. Thus, in the second appeal, re-appreciation
of evidence is not permitted unless the judgment is perverse or the judgment is based upon
evidence admitted illegally or the finding is without evidence (a defect in legal procedure) or
there has been wrong construction of documents or misreading of evidence.
There are cases where the questions of law and fact are intricately mixed. In such cases, the court
will go into the question of fact in order to determine the question of law. Further, there are cases
where a legal inference drawn from facts may be faulty or defective. In such cases also the
appellate court may interfere.
In Ratanlal v Kishorilal (AIR 1993 Cal 144), the Full Bench of the High Court of Calcutta after

referring to 54th Report of the Law Commission and a number of decisions: "By importing the
expression 'substantial question of law', the Commission can be said only to have sought to
eliminate frivolous, flimsy and fragile second appeals and exhorted the High Courts to be on the
strictest vigil against entry to appeals on inconsequential but ingenious grounds. It does not by its
own avowal preclude admission of appeal in cases where there has been judicial misconduct in
the assessment or admission of evidence. If the law is settled but is not applied to a set of facts
despite the finding warranting its application, it is not perceivable how the legislature could
conceive of barring the High Court from setting right the erroneous application. Where the
finding of fact is on no evidence it is then to be either on assumptions, or on surmises, and
conjectures. How such a situation shall be allowed to go unremedied where it leads to the denial
of justice? This will bring the judicial system to discredit before the people".
Points of law can be allowed to be urged and put forward in a second appeal, even though such
points were available on facts before the courts below, but were not urged or put forward. Thus,
new pleas can be taken in second appeal (Subodh Kumar Neogy v Panchu Gopal Neogy AIR
1985 NOC 120 Cal).
Substantial Question of Law
A second appeal lies only on a substantial question of law and not on any other ground (Sec.
101). The 1976 amendment to Sec. 100 has barred entertainment of second appeal on the ground
of error of law or procedure. There is conflict of judicial decisions on the interpretation of the
expression "substantial question of law."
The expression/phrase cannot be confined to a strait-jacket and no rule of universal application
can be formulated as to when it can be said that a substantial question has arisen. It may be noted
that a High Court can entertain a second appeal provided that it is satisfied that the case
"involves" a substantial question of law. The term "involves" suggests that such a question must
arise in the case and it is necessary to decide it. It does not mean that in certain contingencies
such a question might possibly arise. Thus, the mere fact that the question is raised by the
appellant in the appeal is not enough and the High Court is not justified in entertaining the
appeal. The term 'involves' implies a considerable element of necessity (SBI v S.N. Goyal AIR
2008 SC 2594).
The 'substantial question of law' is different from 'question of law of general importance'. In
other words, the substantial question of law need not be of general importance. It means a
substantial question of law as between the parties involved in the case. A question of law is
substantial as between the parties if the decision turns one way or the other on the particular view
of law, if it does not affect the decision, it cannot be said to be substantial as 'between the parties
(Mahant Har Kishan v Satgur Prasad AIR 1953 All 129).

The Supreme Court in Kondiba Dagadu Kadam v Savitribal Sopan Gujar [JT 1999 (3) 3C
163] observed that a second appeal can be filed, before the High Court under Sec. 100, only if a
substantial question of law is involved in the case. The memorandum of appeal must precisely
state the substantial question of law involved and the High Court is obliged to satisfy itself
regarding the existence of such question. If satisfied, it has to formulate the substantial question
of law involved in the case. The appeal is required to be heard on the question so formulated. It
thus interdicts the appellant from urging any other ground in appeal without the leave of the
court. However, the respondent at the time of hearing of appeal has a right to argue the case in
court that it did not involve any substantial question of law. The proviso to section acknowledges
the powers of High Court to hear the appeal on a substantial point of law, though not formulated
by it with the object of ensuring that no injustice is done to the litigant (appellant) where such
question was not formulated at the time of admission either by mistake or by inadvertence.
In Santosh Hazari v Purushottam Tiwar (Dead) by LRs (AIR 2001 SC 965), it has been held
that whether a question of law is a substantial question of law in a case will depend on the facts
and circumstances of each case, the paramount consideration being the need to strike a balance
between obligation to do justice and necessity to avoid prolongation of any dispute. The court
took the view that failure to decide the core issue gives rise to a substantial question of law.
In Achintya Kumar Saha v M/s Nanee Printers (AIR 2004 SCW 763), the court observed that
the main issue in the case was whether the agreement was a 'licence' or a 'tenancy.' The trial court
held it licence whereas first appellate court did not adjudicated upon it. When the core issue is
not adjudicated upon, it results in a substantial question of law under Sec. 100.
The following questions may be said to be 'substantial question of law':
(i) Recording of a finding without any evidence on record (that means inference as to finding of
fact drawn on the basis of evidence and material on record is not a substantial question of law);
(ii) Disregard/non-consideration of relevant/admissible evidence;
(iii) Taking into consideration irrelevant/inadmissible evidence;
(iv) Interpretation or construction of material documents;
(v) Misconstruction of evidence or documents;
(vi) Inference from or legal effect of proved/admitted facts;
(vii) A question of admissibility of evidence;
(viii) A question of law which is fairly arguable or on which there is conflict of judicial opinion
(where the point is not finally settled by the Supreme Court/Privy Council/Federal Court);
(ix) Placing onus of proof on a wrong party;
(x) Disposal of appeal before disposing an application for additional evidence under Order 41,
R.27.

The following questions were held not to be substantial question of law:

(i) Concurrent findings of fact recorded by the court below;
(ii) Finding of fact recorded by the first appellate court;
(iii) Where two views are possible;
(iv) Where new case is sought to be made out in second appeal;
(v) Where new plea is raised which is either based on fact, or on mixed question of fact and law,
or on mere question of law (not substantial one);
(vi) Where the question raised is too general or omnibus in nature;
(vii) Where a finding of fact has been attacked on the ground that it is erroneous (as against
perverse);
(viii) Where the High Court feels that the reasoning of the first appellate court is not proper, etc.
No Second Appeal in Certain Cases (Sec. 102)
"No second appeal shall lie from any decree, when the subject matter of the original suit is for
recovery of money not exceeding Rs. 25, 000" (as amended by the 2002 Amendment).
Rules Relating to Second Appeals (Order 42)
Order 42 lays down that all the rules of O. 41 also apply to second appeals. A memorandum of
second appeal must precisely state the substantial question of law. However, unlike the
memorandum of first appeal, it need not set out the grounds of objections to the decree appealed
from.
Power of High Court to Determine Issue of Fact (Sec. 103)
Sec. 103 lays down that in any second appeal, the High Court may, if the evidence on the record
is sufficient, determine any issue necessary for the disposal of the appeal: (a) which has not been
determined by the lower appellate court, or both by the court of first instance and the appellate
court; or (b) which has been wrongly determined by such court or courts by reason of a decision
on such question of law as is referred in Sec.100. Sec. 103 thus enables a High Court to decide
even an issue of fact in certain circumstances.

APPEALS FROM ORDERS

Section 104-108 and Order 43 deal with appeals from orders. They state that certain orders are
appealable. No appeal lies against other orders. But those orders can be attacked in an appeal
from the final decree. They also provide for forum of an appeal.
APPEALABLE ORDERS

Under Sec. 104, an appeal lies against the following orders only:
(a) an order for payment of compensatory costs in respect of false or vexatious claims or defence
under Sec. 35-A;
(b) an order under Sec. 91 or Sec. 92;
(c) an order under Sec. 95;
(d) an order under any of the provisions of Code imposing a fine or directing the arrest or
detention in the civil prison, except where such arrest or detention is in execution of a decree;
(e) an order returning a plaint to be presented to the proper court;
(f) an order rejecting an application to set aside the dismissal of a suit for default;
(g) an order rejecting an application to set aside an ex parte decree;
(h) an order refusing to set aside the abatement or dismissal of a suit;:
(i) an order rejecting an application for permission to sue as an indigent person;
(j) an order granting or refusing to grant interim injunction; and
(k) any order made under the rules from which an appeal is expressly allowed by the rules e.g. an
order of remand or an order granting an application for review.
No further appeal lies from any order passed in appeal under Sec. 104. In other words, no appeal
shall lie from any order made in appeal. This, however, does not take away the right of appeal
under the Letters Patent or to the Supreme Court; nor does it interfere with a right of revision or
review.
Sec. 105 lays down that an order, whether appealable or not, except an order of remand, can be
attacked, in an appeal from the final decree, on the ground that there is an error, defect or
irregularity in order which affects the decision of the case. An 'interlocutory order' can be so
attacked even though no appeal has been preferred against it. The principle underlying Sec. 105
is that when an interlocutory order is appealable, the party against whom such order is made is
not bound to prefer an appeal against it.
Sec. 106 provides that an appeal from an order shall lie to the court to which an appeal would lie
from the decree in the suit in which such order was made, or where such order is made by a court
(not being a High Court) in the exercise of appellate jurisdiction, then to the High Court.
The provisions relating to 'first appeals' (O.41) shall apply to 'appeals from orders' also (Order
43). Under Order 43, an appeal shall lie from the eighteen orders, which include an order
returning a plaint to be presented to the proper court, an order rejecting an application for an
order to set aside the dismissal of a suit/ set aside a decree passed ex parte, an order setting aside
or refusing to set aside a sale, an order refusing to set aside the abatement or dismissal of a suit,
an order rejecting an application to sue a an indigent person, orders in interpleader suits, an order
for the grant of temporary injunction, an order of refusal to re-admit or re-hear an appeal, an
order wanting an application for review, etc.

APPEALS TO SUPREME COURT

Appeals to the Supreme Court are governed by the provisions of Articles 132, 133 and 134-A of
the Constitution of India with regard to civil matters. Subject to the provisions of the
Constitution, an appeal shall lie to the Supreme Court from any judgment, decree or final order
in a civil proceedings of High Court, if the High Court certifies thata) The case involves a substantial question of law of general importance; and
b) In the opinion of the High Court the said question needs to be decided by the Supreme
Court.
Sections 109 and 112 read with Order 45 deal with appeals to the Supreme Court.
CONDITIONS: Section 109, Order 45 Rule 3
An appeal would lie to the Supreme Court under Section 109 of the Code only if the following
conditions are fulfilled:
1. A judgment, decree or final order must have been passed by the High Court;
2. A substantial question of law of general importance must have been involved in the case;
and
3. In the opinion of the High Court, the said question needs to be decided by the Supreme
Court.
PROCEDURE AT HEARING
Application for leave and certificate of fitness
Whoever desires to appeal to the Supreme Court shall apply by a petition to the court whose
decree is sought to be appealed from. Ordinarily such a petition should be decided within
sixty days from the date of filing of the petition. Every petition should state the grounds of
appeal and pray for the issue of a certificate (i) that the case involves a substantial question of
law of general importance; and (ii) that in the opinion of the Court the said questions needs to
be decided by the Supreme Court. After notice to the other side, the court may grant or refuse
to grant the certificate.
Security and deposit: Rules 7, 9 & 12
When the certificate is granted, the applicant should furnish security for the costs of the
respondent and also deposit the expenses for translating, printing, indexing, etc. within the
stipulated period.
Admission of Appeal: Rule 8

Where the directions regarding furnishing of security and making of deposit are carried out,
the court shall declare the appeal admitted, give notice thereof to the respondent and transmit
the record to the supreme court.28 The execution of decree shall not be stayed meanwhile.29
Powers of court pending appeal
The pendency of an appeal to the Supreme Court does not affect the right of the decreeholder to execute the decree unless the court otherwise directs. The Court may stay execution
after taking sufficient security from the appellant or it may allow the decree to be executed
after taking sufficient security from the respondent.
APPEALS UNDER CONSTITUTION
Over and above Articles 132, 133 and 134-A, Article 136 of the Constitution confers very
wide and plenary powers on the Supreme Court to grant special leave to appeal from any
judgment, decree, determination, sentence or order passed by any court or tribunal.

APPEALS BY INDIGENT PERSONS

Order 33 deals with 'suits' by indigent persons. Order 44 deals with 'appeals' by indigent
persons. The provisions of O. 44 are subject in all matters to the provisions of O. 33 insofar
as they are applicable.
Under Order 44, any person who is entitled to appeal, may, if he is unable to pay fees
required for the memorandum of appeal, present an application to appeal as an indigent
person. If the court rejects the application, the applicant then has to pay the fees. In other
words, the rejection of an application for leave to appeal as an indigent person does not ipso
facto result in the rejection of the memorandum of appeal filed along with the application. It
only means that the court is not satisfied about the claim of the applicant that he is an
indigent person (Ram Sarup v Union of India AIR 1983 SC 1196).

28. Shiva Juting Bale Ltd v. Hindlay and Co., AIR 1955 SC 464.
29. Deochand v. Shiv Ram, AIR 1965 SC 615.
If the applicant has already been allowed to sue (or appeal) in forma pauperis in the court from
whose decree the appeal is preferred, no further enquiry is required to be made in respect of the
question of his pauperism; rather, an affidavit to the effect that he has not ceased to be an
indigent person would suffice, unless the opposite party disputes the truth of statements made in
the affidavit. In the latter case, an enquiry into the applicant's pauperism can be made by the

appellate court; similar would be the case when the applicant is alleged to have been an indigent
person since the date of the decree appealed from.

CONCLUSION
The expression appeal has not been defined in the Code of Civil Procedure 1908. It is an
application or petition to appeal higher Court for are consideration of the decision of appeal
lower court. It is appeal proceeding for review to be carried out by appeal higher authority of
appeal decision given by appeal lower one. In appeal is appeal creature of statute and right to
appeal is neither an inherent nor natural right.
Appeal person aggrieved by appeal decree is not entitled as or right to appeal from decree. The
right to appeal must be given by statute. Section 9 confers on appeal litigant, independently of
any statute, appeal right to institute appeal suit of civil nature in appeal court of law. So he has
appeal right to apply for execution of appeal decree passed in his favour, but he has no right to
appeal from appeal decree or order made against him, unless the right is clearly conferred by
statute. Section 96 of the Code gives appeal right to litigant to appeal from an original decree.
Section 100 gives him appeal right to appeal from an appellate decree in certain cases. Section
109 gives him right to appeal to the Supreme Court in certain cases. Section 104 gives him right
to appeal from orders as distinguished from decrees.
As soon as judgment is pronounced against party, right to appeal arises. Right to appeal doesnt
arise when adverse decision is given, but on the day suit is instituted i.e. proceedings
commenced, right to appeal get conferred. Thus, it can be said the Right to appeal is appeal
substantive right vested in parties from the date suit instituted.