APPEAL Notes By Deovrat Wade1

• Appeal hasn’t been specifically defined under CPC.

• Appeal is simply a request to the higher court to review the decision of the lower court.
• It allows the parties who are dis-satisfied with the lower courts order/decree to seek re-
examination of a case by a higher authority.
• It is not an inherent right. Only maintainable if clear authority of law is present.
• It is a remedy provided by CPC to aggrieved parties.

Essentials of Appeal: -

• Decision by an administrative Authority.

• Memorandum of appeal has to be filed along with appeal. It should contain the grounds
on which appeal has been filed, sign of appellant, attachment of certified copy of original
decree and judgment, and security deposit in court in cases involving money decree.
Courts have the power to reject and amend the memo, notice of appeal to be sent to
lower court, appellate court can add ground suo moto.
• Person aggrieved by such a decision. Not necessary that he is a necessary party, he must
just be part of the original proceedings.
• Reviewing body ready and willing to entertain an appeal.

Powers of First Appellate Court

• To determine the case finally.

• To remand the case.
• To frame issues and refer them to trial.
• To take additional evidence.

Additional points to be kept in mind: -

• Disposal of First Appeal is to be done in 60 days.

• No stay of the lower courts order is automatically granted. An application for stay has to
be filed in the appellate court.
• If respondent is absent: - Ex-Parte order can be passed.

1
https://www.linkedin.com/in/deovrat-wade-b51506203/
• If Appellant is absent: - Dismissal of Appal.

TYPES OF APPEAL

FIRST APPEAL

• Defined from S. 96-99A and O. 41.

• It is an appeal which lies from original decree of court (court which had original
jurisdiction.)
• It lies in any superior court, not necessarily High Court.
• Section 96 states that an appeal will lie from which decree. Appeal is allowed in
cases of Ex-Parte Decree. Appeal is not allowed from Consent Decree. No appeal
in petty cases involving amount less than 10,000/-. Appeal is only on “question
of law”.
• Appeal is not allowed in these cases: -
o Misjoinder or non-joinder of un-necessary parties.
o Misjoinder of cause of action.
o Cases of error, defect, or irregularity in any proceedings.

• Limitation to file F. A. generally is 30 days. (60 days in cases involving appeal

to HC.)
• Filed in cases where there is either a question of: -
o Fact
o Law
o Mixed question of fact and law.

SR. NO. CASE NAME, CITATION RULING

1) Tirupati Balaji v. • Appeal is removal of a cause of action from
State of Bihar, inferior court/tribunal to a superior court.
AIR 2004 SC 2351
• Done for testing the soundness of a inferior court’s
decision/proceedings.

• The superior forum shall have jurisdiction to

 ❖ Reverse,
❖ Confirm,
❖ Annual
❖ or Modify
Decree/Order of the Lower Court.

• Power of remand is also present. This means

sending the matter back to the lower court for
correcting mistakes.

2) Narendra Gopal • The First Appellate Court under Section 96 CPC is

Vidyarthi v. Rajat the final court of facts.
Vidyarthi, (2009) 3
SCC 287 • The High Court, in a second appeal under Section
100 CPC, cannot interfere with the factual findings
of the First Appellate Court.

• Exception: The High Court can examine findings of

fact only if they are:
❖ Based on no evidence, or
❖ Perverse (i.e., unreasonable or against the weight
of evidence).

• Even in such exceptional cases, the High Court must

formulate a substantial question of law to interfere
in second appeal.

SECOND APPEAL

• Defined from S. 100-103 and O. 42.

• It is simply an appeal which lies from the decision of First Appeal.
• It is only allowed on substantial question of law.
• H.C. can Suo Moto add any question of law if necessary.
• Th substantial question of law should be mentioned in the memorandum of appeal
which is attached to the Second Appeal.
• S.A. can be filed against an Ex-Parte Order.
• No Second Appeal is allowed if the amount involved is less than 50,000/-
• If the High Court hears a first appeal itself, no further intra-court appeal—such as
a Letters Patent Appeal—is permitted, even if other laws or rules suggest otherwise.

Powers of High Court in Second Appeal.

• The High Cort can determine any issue that the lower court or the First Appellate
Court hasn’t determined.
• Any issue which has been wrongly determined by the abovementioned courts: - if
it is related to the substantial question of law.

3) Smt. Neena Vikram Substantial Question of Law means –

Verma v. Balmukund Whether Question raised is of general importance or it
Singh Gautam, (2013) is directly and substantially affecting rights of parties.
5 SCALE 633

4) Sir Chunilal V. Mehta A question of law is considered a substantial question

v. Century Spinning of law when:
and Manufacturing • It is fairly arguable,
Co., AIR 1962 SC • There is room for difference of opinion on the issue,
1314 • The Court finds it necessary to:
✓ Deal with the question at length, and
✓ Discuss alternative views on the matter.
5) Leela Soni v. Rajesh • The High Court’s jurisdiction under Section 100
Goyal, AIR 2001 SC CPC is limited to substantial questions of law in
3601 second appeals.
• Under Section 101 CPC, no second appeal is
permitted except on the grounds specified in Section
100.
• Therefore:
✓ A second appeal cannot be entertained on
questions of fact.
✓ The High Court cannot interfere with factual
findings recorded by the Lower Appellate Court.

6) Chunilal V. Mehta And • Test for determining Substantial Question of Law.

Sons, Ltd v. The • It is a substantial question of law if: -
Century Spinning And ✓ It is of general public importance.
Manufacturing ✓ It directly or substantially affects the rights of
Company Ltd., AIR parties.
1962 SC 1314 ✓ If it is free from difficulty or calls for discussion
of alternative views.
✓ If it is an open question of law: - not settled by
the Court or Privy Council or any Federal Court.

7) James Joseph v. State It was held in this case that: -

of Kerala, (2010) 9 • An appeal is a proceeding where a higher court
SCC 642 reviews a lower court’s decision on facts and
law, with power to:
Just go through, they ✓ Confirm, reverse, modify, or
are all the same : - ✓ Remand the case for fresh decision with
general points directions.
regarding appeal. • The scope of appellate jurisdiction is determined
by the statute granting it.
 • Whether it's a first or second appeal, the extent
of jurisdiction depends on the language of the
statute, not the stage of appeal.
• If the legislature intends to limit appellate
jurisdiction, it may:
✓ Explicitly state such limits, or
✓ Incorporate Section 100 CPC (expressly or
impliedly) to restrict second appeals to
questions of law.
• Generally:
✓ First appeals (against original
decrees/orders): allow rehearing on facts and
law.
✓ Second appeals (against appellate orders):
usually restricted to questions of law, but this
is based on statutory wording, not a fixed
legal rule.
• If the statute places no restrictions, the appeal is
presumed to allow rehearing on facts and law.
• If a statute creates a self-contained second
appeal provision without referring to Section
100 CPC or any limitation:
✓ Then Section 100 limitations cannot be read
into it.
✓ The second appeal may then be on facts and
law, depending on the statute.

APPEAL FROM ORDER (SECTIONS 104–106 & ORDER 43 CPC):

• These provisions deal with appeals against specific interlocutory or procedural
orders (not decrees).
• Section 104 lists orders from which an appeal lies.
• Order 43 Rule 1 provides a detailed list of appealable orders (like orders rejecting
plaints, granting injunctions, etc.).
• Section 105 & 106 clarify that orders not expressly appealable can still be
challenged in an appeal against the final decree.

APPEAL BY INDIGENT PERSON (ORDER 44 CPC):

• Also known as a "pauper appeal", it allows a person who cannot afford court fees
to appeal as an indigent person.
• Follows the same criteria as Order 33 CPC (suits by indigent persons).
• The appellate court must be satisfied that the person lacks sufficient means to pay
the fee and that the appeal is not frivolous or vexatious.

APPEAL TO SUPREME COURT

• Section 109, Appeal can be done only against the decision of High Court.
• The High Court should clarify that the case involves a substantial question of law
which is of general importance.
• It should be the HC’s opinion that the decision should be decided by the Supreme
Court.

Sr. No. Case Name, Citation Held

Narendra Gopal • The term "substantial question of law"
Vidyarthi v. Rajat means:
Vidyarthi, (2009) 3 o A question that is real, essential,
SCC 287 and of sound worth, not merely
technical, trivial, or academic.
• The legislature did not require the question
to be "of general importance" (unlike
 Section 109 CPC or Article 133(1)(a) of the
Constitution).
• A substantial question of law arises when:
o The question is fairly arguable,
o There is room for differing
opinions, or
o The court finds it necessary to
discuss the issue in detail or
examine alternative views.
• A question is not substantial if:
o It is already settled by higher
courts, or
o It only involves the application of
well-established principles to
specific facts.
State Bank of India v. • A certificate for appeal to the Supreme
Shri N. Sundara, AIR Court can be granted only if all the
1976 SC 1111 following conditions are met:
o The case involves a substantial
question of law,
o The question is of general
importance, and
o The High Court believes that the
question needs to be decided by the
Supreme Court.
• The word “needs” implies a necessity for a
Supreme Court ruling, which may arise
when:
o Two possible views exist on the legal
question, and the High Court adopts
one, or
 o A different view has been taken by
another High Court, indicating
legal uncertainty.

ORDER 45

It lays down the procedure for filing an appeal to the Supreme Court from a High Court
judgment, when permitted under Article 133 or 134 of the Constitution or Section 109
CPC.

KEY PROCEDURE:
• Application for Certificate:
The aggrieved party must apply to the High Court for a certificate stating:
✓ The case involves a substantial question of law of general importance, and
✓ That the question needs to be decided by the Supreme Court.

• Grant of Certificate:
✓ If the High Court is satisfied, it grants the certificate.
✓ Without this certificate (or special leave from the Supreme Court under
Article 136), the appeal is not maintainable.

• Filing in Supreme Court:

✓ Once certificate is granted, the party files a petition of appeal in the
Supreme Court.
✓ Includes documents like the judgment, decree, certificate, and record of the
case.
• Security and Costs:
✓ The appellant may be required to furnish security for costs or comply with
conditions set by the High Court/Supreme Court.
SECTION 112 CPC – SAVING OF PRESIDENTIAL PREROGATIVE

• This section saves the power of the President of India under Article 136 of the
Constitution, which allows the Supreme Court to grant special leave to appeal in
any case, even if it does not satisfy Order 45 or Section 109.
• In simple terms:
• Even if a case doesn’t qualify for appeal under CPC, the Supreme Court can still
hear it under its constitutional powers.
• It ensures that CPC provisions do not limit the Supreme Court’s jurisdiction under
the Constitution.