This Article is written by Abhishek Dubey, a 2nd-year law student from Sant Vivekanand College of Law and Higher Studies. It provides a detailed analysis of ‘Second Appeal under the Civil Procedure Code.1908’
The term appeal has not been defined anywhere under the Civil Procedure Code(hereinafter mentioned as CPC). It is defined in Black Law Dictionary – The complaint made to the superior court for the error committed by an inferior court on whose judgement or decision the court is above to correct the decision or reverse the decisions is called as an appeal.
As per Section 100 of the Civil Procedure Code, 1908:
- An appeal shall lie to the High Court for the decision made by the District Court.
- An appeal lies if the decree is passed ex-parte.
- If High Court is satisfied that substantial question of law is involved it shall formulate the decisions.
It is to be noted that the second appeal is on the grounds of a substantial question of law not on finding errors of facts.
Nature and Scope
Nature of the second appeal
- The right to appeal is not inherited but it is created by statute. The right to file suits is inherent in nature.
- This right starts from the date of filing suits.
- The decision of Appellate Court is final.
- The rights cannot be declared void until and unless declared by the statue.
Scope of the Second Appeal
The Second appeal can be exercised only when the case falls under these categories-
(a ) Question of law is involved.
(b) Question of law should be substantial.
Other justification defined as under Section 100 of CPC.
Question of fact wrongly determined should not be the criteria for the second appeal
In the case of Dudh Nath Pandey vs Suresh Chandra Bhattasaali, it was held that
The High Court can not set aside the finding of facts by the First Appellate Court.
In the case of Annapoorani Ammal vs G.Thangapolam, it was held that the High Court can only interfere when there involves a substantial question of law.
In the case of Dnyanoba Bhaurao vs. Maruti Bhaurao Marnor, it was held that finding of fact is against the weight of evidence and there is no question of law in this.
The distinction between Second Appeal and Revision
The second appeal lies under section 100,103,108 and order 42.
Revision is defined under section 115.
The second appeal lies when the case involves a substantial question of law.
Revision lies when there is a jurisdiction error.
In the second appeal, the High Court can decide questions of fact in various situations.
But in revision High Court cannot decide the question of Fact.
The High Court has no power to grant relief merely on the equitable ground.
In the case of revision, the High Court has the power to decline if it thinks that substantial justice has been done.
The second Appeal lies only in the High Court.
The revisional power of the High Court can be invoked in cases where no appeal lies in the High Court.
The High Court has the power to interfere in the second appeal if it is not legal.
In revision, the High Court cannot interfere with the judgement of the subordinate court even if it is not legal.
The substantial question of law
The term substantial question of law has not been defined anywhere under CPC but it was first time interpreted by Supreme Court in the case of Sir Chunni Lal Mehta &Sons Ltd vs Century Spg & Mfg co.Ltd.
The proper test in case of determining the substantial question of law differs from our opinion and opinion of the court, in our opinion, it is of general public importance or if it affects the rights of parties and also when decisions are not finally settled by the court or federal body and in cases wherein the court perceives that there involves a principle then that principle to be applied when there is a substantial question of law.
The question of law to be substantial it should be questionable, it will also depend upon the facts and circumstances of the case.
In the case of Mahindra and Mahindra Ltd. vs. Union of India, it was held that case should involve questions of law not merely question of law.
The court should record the reason for the substantial question of law.
In the case of M.S. V Raja vs. Seeni Thevar, it was held by the Supreme Court that formulation of a substantial question of law may be inferred from the kinds of questions actually considered and decided by the court in the second appeal, even though the substantial question of law is not specifically and separately formulated.
Question of the law of general importance
The second appeal can only be filed when there involves a question of law and question of law should be substantial. If it is of general public importance or if it affects the rights of parties substantially. Section 100 Of CPC also deals with the importance of the question of law;
Clause (3) states The memorandum of appeal shall state that a substantial question of law is involved.
Clause (4) states the High Court is satisfied that it involves a substantial question of law in any case and it shall formulate the question.
No second appeal in certain cases
This is defined under Section 102 of CPC:
No second appeal shall lie when it is of cognizable nature by courts of small issues.
No second appeal shall lie when there is the finding of errors in the jurisdiction.
No letters patent appeal
Letter Patent Appeal is an appeal against the decision of a single judge in the same court. This saves the petitioner from going to the Supreme Court, saving a lot of costs.
In this, the petitioner has the option to move the case to another bench where there is more than one judge.
Article 226 and Article 227 of the Indian Constitution has provision and judgement passed in Article 226 states that it can be issued to any person or authority in any cases and Article 227. It empowers The High Court to have superintendence over subordinate courts and tribunals. The judgement of Article 227 does not fall in this category.
The intra-court appeal in case of High Court is for 30 days and it is for 90 days in case of Supreme Court.
Letter of Patent Appeal is not maintainable in the Arbitration Act:
- The high court of Bombay held that LPA is not maintainable under Section 8 of arbitration.
- Only section 37 of the arbitration act would apply.
- Restoration application along with the application of condonation is not maintainable.
- LPA shall not lie from the decree, judgement of the single bench under section 100.
- Order of suit, not a judgement from one court to another is not maintainable.
Forum of the second appeal
Appeal from original decree– Generally every decree passed by subordinate court firstly appeal has to lies to High Court. But appeal shall not lie if it has been passed by the consent of the parties under Section 96 of CPC.
Appeal from order
An appeal shall lie from the order which is appealable;
- It is an order made under section 35A,i.e Compensatory cost.
- Refusing leave to institute a suit under nature of section 91 and 92.
- An order under section 95 i.e compensation for obtaining arrest, or injunction.
- Insufficient grounds.
- Any order made under rules from which an appeal is expressly allowed by rules.
- An order made under this code imposing a fine or directing the arrest.
Appeal from Appellate decree
- An appeal shall lie to High Court if decree passed by the appellate court.
- If the judgement is ex-parte.
- If it involves a substantial question of law.
- The substantial question of law has to be formulated otherwise appeal would be dismissed.
Appeal to the Supreme Court
An appeal shall lie to the Supreme Court if-
- The case involves a substantial question of law which is of general importance.
- When the High Court thinks themselves the case deemed to be fit and decided by the Supreme Court.
Grounds of Appeal
- Appellant has to mention grounds of appeal in the memorandum of appeal.
- Appellant has to mention the ground of objection and present it before the Appellate Court.
- The new ground can be raised by additional application later on, and the High Court has the power to reject or accept the application.
Power of High Court to decide the issue of fact
This is defined under Section 103:
The High Court can decide the issue of facts if sufficient evidence is found and the court thinks it is necessary for the disposal of an appeal –
- If it has not been decided by lower Appellate Court or both by the Court at the first instance and to the lower Appellate Court or if it has been wrongly decided by Court and there involves a substantial question of the law which is defined under section 100 of CPC.
Procedure at hearing
- Every appeal shall be in the form of a memorandum signed by the appellant and to be presented before the court.
- Where memorandum is not made as per prescribed by law then the court has the power to either reject or return the application to the appellant and can give the party prescribed time to submit an application again.
- When an appeal is not made on time then a statement of reason along with some proof should be submitted to court and court must satisfy from the application that there is reasonable cause for the application not made on time.
- No order of stay of execution of a decree shall be made unless the court decides to hear the appeals.
- Registry of Memorandum of appeal is necessary.
- The Appellate Court, after calling the respondent to present before the court and ask to give an answer and also ask him to give application after application court may call the Appellant to pay the Security Cost.
- The appellant Court after hearing to the appellant may dismiss the application without sending the notice to the lower court and also without sending a notice to the respondent.
- The appellate court should fix a day for hearing and give notice to the respondent if the respondent does not appear on a given day then case will be ex- parte.
- The respondent may do any cross objection.
- After hearing the appeal the appellate court may-
- Remand the case.
- May frame the issue and refer it to for trial.
- Take additional evidence or requires such evidence to be taken.
- The appellate court after resetting the issue may pronounce the judgement.
Document to be submitted with the appeal
- Form No.
- The order appealed against -2 copies.
- Order of Assessing Officer- 2 Copies.
- Grounds of appeal.etc.
An appeal itself does not operate as a stay of proceedings until the decree/ judgement appealed and execution of decree not stayed. An appeal is filed to appellate court however the appellate court can order a stay of execution if the court thinks it necessary.
If the application made for seeking stay before the expiration of time and if the court thinks it necessary can grant the execution of stay.
The probability of loss or party suffering loss and the party has filed an application to grant a stay and that too without delay then the court can grant a stay.
In the case of Atma Ram Properties (p) Ltd. v. M/s. Federal Motors Pvt.Ltd
Stay order can be made conditional too. But the condition attached to stay order must be reasonable.
In an appellate court stay of proceedings can not be in operation for more than six months it has been held by the Supreme Court, in Asian Resurfacing of Road Agency Pvt. Ltd.& Anr. V. Central Bureau of Investigation
The right to appeal arises after the judgement is passed by the court and it is available to both parties. The right to appeal begins from the proceeding itself and ends when judgement is pronounced. The appeal can lie when the case involves a substantial question of law and the court has the responsibility to formulate the substantial question of law.
Right to appeal is a statutory right that means it is created by statute. A Civil suit has to be filed subject to the condition as specified in the jurisdiction.
Right to institute a suit is inherent but right to appeal has to be conferred through the statue.
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