CODE OF CIVIL PROCEDURE, 1908

CODE OF CIVIL PROCEDURE, 1908

SESSION 2018-2019

FIRST APPEAL AND SECOND APPEAL

SUBMITTED TO: Dr. Karan Jawanda

SUBMITTED BY: Yogesh Kumar Mittal

CLASS : B.Com. LL.B.

ROLL NO. : 176/15

SECTION :C

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CONTENTS
ACKNOWLEDGMENT ....................................................................................................... 3

Introduction .......................................................................................................................... 4

Meaning of First Appeal........................................................................................................ 5

Who may appeal? .................................................................................................................. 6

Who may not appeal............................................................................................................ 10

Appeals in various cases...................................................................................................... 11

1) AGREEMENT NOT TO APPEAl ............................................................................ 11

2) Appeal against ex-parte decree ................................................................................. 11

3) Appeal against judgement ......................................................................................... 11

4) Appeals against preliminary decree .......................................................................... 12

Where No Appeal Lies ........................................................................................................ 13

1) No appeal against consent decree .............................................................................. 13

2) No appeal in petty cases ........................................................................................... 13

Order 41.............................................................................................................................. 14

Second Appeal .................................................................................................................... 16

On what grounds does a Second Appeal lie? ....................................................................... 18

1. Substantial Question of Law: .................................................................................... 18

2. Question of fact ........................................................................................................ 19

3. Mixed question of fact and law ................................................................................. 20

4. Concurrent finding of the facts ................................................................................. 21

No Second Appeal in certain cases ...................................................................................... 22

Desirable limitations on the scope of Second Appeal ....................................................... 22

Conclusion .......................................................................................................................... 24

BIBLIOGRAPHY ............................................................................................................... 25

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ACKNOWLEDGMENT

I, Yogesh Kumar Mittal, would like to express my special thanks of gratitude to my Teacher,
Dr. Karan Jawanda ma’am as well as our Director who gave me the golden opportunity to do
this wonderful project on ‘First Appeal and Second Appeal’, which helped me in doing a lot of
Research and I came to know about so many new things. I am really grateful to them for this
learning curve.

I would like to extend my acknowledgement towards them for their valuable criticism and
benevolent assistance as well as consistent support throughout the phase of this project
compiling.

All and all thanks to everyone who helped me with the creative and new ideas which made this
project both an eye candy and soul food through their application of brain, eventually as a
consequence, this spectacular and educational project got finalized in the limited timeframe
previously granted.

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INTRODUCTION

Any person who feels aggrieved by any decree or order passed by the court may prefer an
appeal in a superior court if an appeal is provided against that decree or order. The expression
appeal is generally understood as the judicial examination of the decision by a higher court of
the decision of a lower court. It means removal of a cause from an inferior court to a superior
court for the purpose of testing the soundness of the decision of the inferior court.

From any decree passed by any court exercising original jurisdiction, the first appeal lies to the
court authorized to hear appeals from the decision of such court unless otherwise has been
expressly provided either under the Code or by any other law for the time being in force.
Section 96 to 99A, 107 to 108 and Order 41 of the Code of Civil Procedure deal with appeals
from original decrees which are known as first appeal.

The expression ‘appeal’ has nowhere been defined in the Code of Civil Procedure, 1908. An
appeal, according to Black’s Law Dictionary is:

“The complaint to a superior court of an injustice done or error committed by an inferior one,
whose judgment or decision the court above is called upon to correct or reverse. The removal
of a cause from a court of inferior to one of superior jurisdiction, for the purpose of obtaining
a review and retrial.”

In a similar manner, a second appeal lies against the decree passed by the lower court that heard
the first appeal. An appeal is a statutory and substantive right and not merely a legal right. The
recourse to it can only be taken when it is expressly prescribed by the statute.

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MEANING OF FIRST APPEAL

As stated above appeals from original decree are known as first appeal. The expression
“appeal” has not been defined in the Code of Civil Procedure. Right of appeal is the right of
entering a superior court and invoking its aid and interposition to redress the error of the court
below. Thus, appeal is “the judicial examination of the decision by a higher court of the
decision of an inferior court.”1 Explaining the concept of appeal in Bhil Kanji Bhagwan v.
Bhil Karsan Bijal2, the Gujarat High Court observed:

“Appeal is an application or petition to a higher authority or a Court of law for reconsideration

of the decision of a lower authority or an inferior Court of law. It is an application or a
proceeding for review to be carried out by a higher tribunal of a decision given by a lower one.
An appeal is one in which the question is: Whether the order of the Court from which an appeal
is brought was right on the materials which that Court had before it.”

Appeal is made by the party who is aggrieved or unhappy by the decision of the Court. Appeals
are made to the Court superior to the one who has passed the original decision which is
appealed. First appeal is available to both the parties to a suit as a matter of right. It can be
made on any ground initiated in a suit; evidences not properly examined, witnesses not properly
cross-examined etc.

1
Garikapati Veeraya v. Subbiah Choudhary. AIR 1957 SC 540
2
2003 GLH (23) 385

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WHO MAY APPEAL?

As a general principle, no one can appeal unless he/she was a party to the proceedings or was
treated as such, or the legal representative of the party or unless his privity in estate, title or
interest is apparent on the face of the record. However, any person having a legal grievance
which might have deprived him of the benefit or bound by the order passed is certainly entitled
to the leave. Even in case of doubt as to the existence of the right of appeal, the appellant should
get the benefit of doubt.3

An appeal under this section may be preferred by any of the following persons:

 Any party to the suit adversely affected by the decree4 or if such party is deal, by his
legal representative. 5
 Any transferee of the interest of such part, who, so far as such interest in concerned, is
bound by the decree, provided his name is entered on the record of the suit. 6

No person, unless he is party to the suit, is entitled to appeal under this Section. 7 But a person
who is not a party to the suit, ay prefer an appeal with the leave of the Appellate Court and
such leave should be granted if he would be prejudicially affected by the judgment and if it
would be binding on him as res judicata, under Explanation 6 to Section 11. 8 A person who is
not a party to a proceeding, can still appeal against the order passed in the proceeding with
leave of the Appellate Court, provided he would have been a proper party to the proceeding 9.
Even a party to the suit or a proceeding will have no right of appeal against a decision, unless
he is, in fact, affected by it. Thus, a person who is impleaded as a respondent in a writ petition
on his own application, is not entitled to appeal against the order therein when there is nothing
prejudicial in it, to him. If a suit is filed against a government officer in his official capacity
and against the officer, the state has no locus standi to file an appeal even though the decreed
amount against the officer will have to be paid by the government. This is because it is only a
party who has been adversely affected by a decree or order that can appeal from such a decree
or order. When in proceedings under the Companies Act, 1956, the contention was urged in

3
Petromarine Products Ltd. v. Ocean Marine Services Co. Ltd.
4
Hafiz Mohamud v. Swamp Chand, (1942) 2 Cal 434
5
Gajadhar r. Ganesh, (1871) 7 Bom LR 149
6
Moreshwar v. Kushaba. (1878) 2 Bom 248.
7
Rustomji v. Official Liquidator. (1919) PR No. 79 p. 196
8
Province of Bombay v. Western India Automobile Assn. AIR 1949 Bom 141
9
UCO Bank v. Hanuman Synthetics, AIR 1985 Cal 96

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behalf of the Central Government that certain rules framed under the Act were ultra vires and
that was accepted by the court and an order passed accordingly, it was held that it was not open
to the government to prefer an appeal against that order and contended that the rules are intra
vires as the order was one passed at the instance of the government and in its favor.

A successful party in whose favor a decree has been passed, cannot challenge by the decree by
filing an appeal on the ground that an adverse finding against that party has been recorded in
the judgment. According to the Bombay High Court the remedy available to such party to
challenge an adverse finding is to file cross-objection when the opposite party files appeal
challenging the decree. Where, however, no appeal is filed by the opposite party challenging
the decree, the adverse finding cannot be challenged by the party in whose favor the decree
was passed.10

The question whether a party is adversely affected by a decree is a question of fact as to be

determined in each case according to its particular circumstances. It is clear that if the plaintiff’s
claim is decreed in its entirety and all the issues are found in his favor, the plaintiff cannot
appeal from the decree. In case of the plaintiff’s claim is decreed in its entirety, but one of the
issues is found against him, then plaintiff appeal cannot appeal from the adverse finding. 11 The
reason is that the very fact the decree is entirely in the plaintiff’s favor, notwithstanding a
finding adverse to him on one of the issues, shows that such finding was unnecessary to the
determination of the plaintiff’s suit. It has been stated in the note to Section 11 that when a
finding on an issue is not necessary to the determination of a suit, such finding does not operate
as res judicata; and it is an elementary principle that an appeal is not admissible on any point
that does not operate as res judicata. Where, however the plaintiff had sued for alternative
reliefs and has been granted relief in respect of one such relief, a question arises as to whether
her can appeal against the decree which has been refused the other relief. The trend of decisions
is that he cannot appeal, but the point was left open in the Patna case.

In a later decision, however, the same High Court has been held that in such a situation the
question has to be determined on the averments in the plaint. If the plaint read as whole
discloses that the plaintiff will be satisfied with either of the reliefs claimed by him, he cannot
appeal if one of the relief is granted. One who gets what he wants in not a ‘person aggrieved’.
But if the plaint read as whole gives an impression that of the alternative reliefs one is the main

10
Dr. Mangla Shellar v. Dr. Laxman Ganpat Jadhav. 2008 (1) Mah LJ 244
11
Secretary of State v. Satninatha, (1914) 37 Mad 25

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relief cannot be granted and is refused, the plaintiff can appeal and urge that he is entitled on
the facts of the case to the main relief. 12 Where the order of the Appellate Court remanding a
case becomes final, no appeal can lie against the decision of the trial court which implements
the direction of the Appellate Court.13 Similarly, if a suit is brought by A and B, and the suit is
dismissed in its entirety, B cannot appeal from the decree. And even if one of the issues is
found against B, B cannot appeal from the finding, for such finding does not operate as res
judicata for the reason stated above. 14 It sometimes happens, where there are two or more
defendants, although a suit is dismissed as against one of them, in other words, the decree on
the face of it is entirely in his favor, the decree impliedly negatives the right claimed by such
defendant as against the plaintiff and the other defendants. In such as case, it has been held that
an appeal lies at the instance of such defendant on the ground that he is adversely affected by
the decree. X owes ₹ 2000 to A. A assigns the debt first to B and then to C. C sues A and B
recover the debt, alleging that the assignment to B had become void through non-fulfilment of
the conditions upon which it was made. A decree is passed against A, but the suit is dismissed
as against B. Here, the decree necessarily implies the finding that the assignment to B had
become void, in as much as but for such a finding the decree could not have been passed in
favor of C who admittedly was the second assignee of the debt. B may, therefore, appeal from
the decree, though as against him the suit was dismissed. 15 In a suit by X against A and B with
respect to immovable property, A pleaded the title of B. Then B died and A was recorded as his
legal representative. The suit was decreed in favor of X. A is entitled to file an appeal against
the decree.16 But where a suit is filed against two defendants and a decree is passed which
effects the right of only one of them and the defendant so affected allows the decree to become
final by omitting to appeal, the other defendant cannot, by appeal, challenge the decree, first,
because he did not represent the co-defendant and secondly, because the decree did not
adversely affect his interest and therefore, he cannot be said to be an aggrieved person. 17

In some cases, an appeal may be preferred by a defendant against his co-defendants. A sues
two Hindu brothers B and C, on a promissory note passed by B for money borrowed by him
(B) as manager of the family, alleging that B and C were joint, and that the loan was obtained
by B for family purpose. B does not appear at the hearing. C appears and admits that he and B

12
Union of India v. Garbhu Sao. AIR 1972 Pat 341
13
Sakharchand v. Punju. 74 Bom LR 709
14
Chilian; Kadir Sahib v. Vishwanathayyar, AIR 1943 Mad 497
15
Bhubindra Narayan Bhattacharjya v. Mst. Tarupriya Debva. AIR 1950 Assam 119
16
Tulsiram v. Shyamlal, AIR 1960 MP 73
17
Nirmala Bale v. Balai Chand. AIR 1965 SC 1874 : (1965) 3 SCR 550

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are joint, but denies that the loan was obtained for family purposes. An issue is raised as to
whether the debt contracted by B was for family purposes. It is found by the court that the loan
was obtained by B for family purposes, and a decree is passed against B and C. Here C can
appeal against the decree as between himself and B. The rule is that when a court deals with a
case as raising not only a question between the plaintiffs and defendants, but also as between
the defendants, one of the defendants can appeal from the decree as between himself and the
other defendants.18 An appeal will lie even against a finding if it is necessary and operates as
res judicata.

18
Surn v. Naravanarao, (1894) 18 Bom 520.

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WHO MAY NOT APPEAL

If a party agrees not to appeal or waives his right to appeal, he cannot file an appeal and will
be bound by an agreement if otherwise such agreement is valid. Such an agreement, however,
must be clear and unambiguous.

Whether a party has or has not waived its right of appeal depends upon the facts and
circumstances of each case. Similarly, where a party has accepted the benefits under a decree
of the Court, he can be estopped from questioning the legality of that decree to prevent chaos
from happening.19

As Scutton, L. J. observed, “It startles me that a person can say the judgment is wrong and at
the same time accept the payment under the judgment as being right …. In my opinion, you
cannot take the benefit of a judgment as being good and appeal against it as being bad.” The
question of morality too come into question.

If one party, in whose the decree is passed, enjoys the benefits arising from the said order but
files an appeal on the decree will defeat the purpose of morality. It will be utter wastage of time
and resources. It, therefore, is not allowed to appeal if the awards have been duly enjoyed.

However, law is not a rigid thing. Exceptional circumstances are always taken into
consideration.

Finally, the vested right of appeal is destroyed if the court to which an appeal lies is abolished
altogether without any forum being substituted in its place.

19
Dexters Ltd v Hill Crest Oil Co. (1926) 1 KB 348

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APPEALS IN VARIOUS CASES

1) AGREEMENT NOT TO APPEAL

A right of appeal is a statutory right. If a statute does not confer such right, no appeal can be
filed even with the consent or agreement between the parties.

But an agreement between the parties not to file an appeal is valid if it is based on lawful or
legal consideration and if otherwise it is not illegal.20

2) APPEAL AGAINST EX-PARTE DECREE

One of the remedies available to the defendant, against whom an ex parte decree is passed, is
to file an appeal against such a decree under Section 96(2) of the Code, though he may also file
an application to set aside ex parte decree.

Both the remedies are concurrent and can be resorted to simultaneously. One does not debar
the other as has been rightly said:

“Where two proceeding or two remedies are provided by a statute, one of them must not be
take as operating in derogation of the other.21

In an appeal against an ex parte decree, the appellate court is competent to go into the question
of the propriety or otherwise of the ex parte decree passed by the trial court.

3) APPEAL AGAINST JUDGEMENT

The Code provides an appeal from a decree and not from a judgment. An aggrieved party,
however, may file an appeal against the judgment, if a decree is not drawn up the court. 22

20
Katikara v. Guntreddu (1974) 1 SCC 567
21
Ajudhia Prasad v. Balmukund, ILR (1866) 8 All 354 (FB); Rani Choudhury v. Suraj lit Choudhury, (1982) 2
SCC 596: AIR 1982 SC 1393; Archana Kumar v. Purcndu Prakash, (2000) 2 MP LJ 491 (FB)
22
Banwari Lai v. Chando Devi, (1993) 1 SCC 581

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4) APPEALS AGAINST PRELIMINARY DECREE

An appeal lies against a preliminary decree. A preliminary decree is as much a final decree. In
fact, a final decree is but a machinery for the implementation of a preliminary decree. 23 Failure
to appeal against a preliminary decree, hence, precludes the aggrieved party from challenging
the final decree. Where an appeal is filed against a preliminary decree and is allowed and the
decree is set aside, the final decree falls to the ground as ineffective since there is no preliminary
decree to support the final decree, which means that the preliminary decree would be takeb to
have been correctly passed. 24

23
Phoolchand v. Gopal Lai, AIR 1967 SC 1470: (1967) 3 SCR 153; see also, S. 97.
24
Venkata Reddy v. Pelhi Reddy, AIR 1963 SC 992

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WHERE NO APPEAL LIES

1) NO APPEAL AGAINST CONSENT DECREE

Section 96(3) declares that no appeal shall lie against a consent decree. This provision is based
on the broad principle of estopped. It pre-supposes that the parties to an action can expressly
or impliedly, waive or forgo their right of appeal by any lawful agreement or compromise or
even by conduct. The consideration for the agreement involved in the consent decree is that
both the sides give up their right of appeal. Once the decree is shown to have been passed with
the consent of the parties, Section 96(3) becomes operative and binds them. It creates an
estoppel between the parties as a judgment on contest. Where there is a partial compromise and
adjustment of a suit and a decree is passed in accordance with it, the decree to that extent is a
consent decree and is not appealable. This provision, however, does not apply where the factum
of compromise is in dispute or the compromise decree is challenged on the ground that such
compromise had not been arrived at lawfully. 25

2) NO APPEAL IN PETTY CASES

Section 96(4) has been inserted by the Amendment Act of 1976. It bars appeals except on
points of law in certain cases. Prior to 1976, Section 96 allowed a first appeal against every
decree. Now, sub-section (4) bars appeals on facts from decrees passed in petty suits where the
amount of the subject matter of the original suit does not exceed ₹ 10,000, if the suits in which
such decrees are passed are of a nature of cognizable by Courts of Small Causes. The
underlying object in enacting the said provision is to reduce appeals in petty cases. Such
restrictions are necessary in the interest of the litigants themselves. They should be encouraged
to appeal on facts in trivial cases. 26

25
Kaushalya Devi v. Baijnatb Sayal, AIR 1961 SC 790
26
Or. 20 Rr. 6-A, 6-B; Or. 41 R. 1 (1); see also Jagat Dhish v. jawahar Lai, AIR 1961 SC 832

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ORDER 41

As state above, Section 96-99A enact the substantive law regards First Appeals, while order 41
lays down the procedure relating thereto. The expression appeals and memorandum of appeal
denote two different things. The appeal is the judicial examination by a higher court of the
decision of the inferior court. The memorandum of appeal contains the grounds on which the
judicial examination is invited. The order lays down the requirements that have to be complied
with for validly presenting an appeal. 27

Rule 2 precludes the appellant to urge, except with the leave of the court, any grounds of
objection not set forth in the memorandum of appeal. Where the memorandum of appeal is not
in the proper form, the court may reject it or return to the appellant for the purpose of making
amendments.28 Under the provision of Rule 3A, where an appeal has been presented after the
expiry of the period of limitation specified therefore, it should be accompanied by an
application that the applicant has sufficient cause for not preferring an appeal within the said
time. This rule was inserted during the 1976 Amendment Act to give effect to the
recommendation of the Privy Council.

Rule 5 provides for the stay of execution of decree or order. After an appeal has been filed, the
appellate court may order stay of proceedings under the decree or execution of such decree.
But mere filing of an appeal does not suspend the operation of the decree, the following grounds
must be satisfied before the court may grant stay:

1. The application has been made without any unreasonable delay,

2. Substantial loss will result to the applicant unless such order is made, and
3. Security for the due performance of the decree or order has been given by the applicant.

Rule 11 deals with the power of the appellate court to summarily dismiss an appeal. This rule
embodies a general principle that whenever an appeal is preferred, the appellate court is entitled
to reject the appeal summarily, after hearing the appellant, if no prima facie substance exists.
Where an appeal is triable, it should not summarily dismiss the suit. A case law on this aspect
is Mahadev Tukaram v. Smt Sugandha29, in this case, a will was executed by an old man of
80 years. Although he was literate, the will bore his thumb impression and not his signature.

27
Order 41, r1
28
Order 41, r3
29
AIR 1972 SC 1932

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No other document bearing his thumb impression was produced to support the reason that
thumb impression was taken because his hand was shaky. Out of the six attesting witnesses,
only two were examined. The evidence of the doctor was also not convincing. The trial ciurt
held that will as genuine and that the matter on appeal to the High Court was dismissed
summarily. On second appeal the Court held that the High Court was not justified in dismissing
the appeal summarily, since the first appeal had triable issues.

Rule 16 says that the appellant has the right to begin, just like in the case of an original suit
wherein the plaintiff has the right to begin. If the appeal is not dismissed summarily, then the
court shall hear the respondent against the appeal and the appellant then be entitled to reply.
Like in the case of the original suit, if the plaintiff does nor appear for the hearing, the case
maybe dismissed, so is the case during the appeal too. If the appellant does not appear when
the appeal is called for hearing, the court may dismiss the appeal in default. 30 The same result
ensues in the case of the non-payment of the process fee by the appellant, similar to that of the
situation of the original suit. Under Rule 19, the appeal may be restored after being dismissed
if the appellant files for such action and shows sufficient cause.

As is the case with the original suit, if the respondent does not appear but the appellant does,
the court may proceed ex-parte.31 If the case goes in favor of the appellant, the respondent may
apply for the rehearing of the appeal. If he is able to satisfy the court that he had sufficient
cause for not having appeared for the scheduled hearing, the court may accept the application. 32
However, ordinarily the court should not pass an ex-parte decree except on reliable evidence.

Again, as in the case of the original suit, where joinder of parties is allowed, so in the case of
an appeal respondents maybe added under the provision of the rule 20. Where it appears to the
appellate court at the hearing of the appeal that any person who was a party to the suit in the
trial court but who has not been made a party to the appeal is interested in the result of the
appeal, the court may adjourn the hearing of the appeal and direct such person be joined as a
respondent. The object of this rule is to protect parties to the suit who have not been made
respondents in the appeal from being prejudiced by modifications being made behind their back
in the decree of the appeal.

30
Rule 17(1)
31
Rule 17(2)
32
Rule 21

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SECOND APPEAL

The Second appeal has been defined under Section 100 of the Code of Civil Procedure which
reads as:

“100. Second Appeal:

(1) Save as otherwise expressly provided in the body of 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 appeal, be allowed to argue that case does not involve such question:
Provided that nothing in this subsection 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.”

The procedural right of the second appeal is conferred by this Section on either of the parties
to a civil suit who has been adversely affected by the decree passed by a civil court. The second
appeal lies to the High Court only if the Court is satisfied that it involves a substantial question
of law.

The right to appeal or second appeal for that matter is an instrument of the statute. Thus, such
right doesn’t come under the principles of natural justice and one can’t approach the court if

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the same has not been provided by the statue. The Supreme Court in Anant Mills Co. Ltd. v.
State of Gujarat33 have iterated that the

“right of appeal is a creature of statute and there is no reason why the legislature, while
granting the right, cannot impose conditions for the exercise of such right so long as the
conditions are not so onerous as to amount to unreasonable restrictions rendering the right
almost illusory”.

33
(1973) 14 GLR 826

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ON WHAT GROUNDS DOES A SECOND APPEAL LIE?

Section 101 reads as “Second appeal on no other grounds— No second appeal shall lie except
on the ground mentioned in section 100.” therefore, it specifically bars the second appeal on
any other ground mentioned in Section 100. The grounds on which a Second Appeal shall lie
are:

 That the appeal should involve a substantial question of law that may either be
presented by the party in a memorandum of appeal or the court may itself formulate
such question;
 That the second appeal may be brought forth where the decree was passed ex parte;

1. SUBSTANTIAL QUESTION OF LAW:

A Second Appeal can only be entertained if it involves a substantial question of law. The
expression is not defined in the Code, however, the Supreme Court in Sir Chunilal v. Mehta
And Sons, Ltd. vs The Century Spinning and Manufacturing Co., Ltd.34 laid down that

“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 call for discussion of alternative views.”

To be a ‘substantial’ question of law, the same should be debatable, not have been previously
determined by the lower courts and should not be an applicable precedent in any form. Whether
the question of law is ‘substantial’ or not is to be decided by the High Court and that may
depend upon the facts and circumstances of each case. The proviso to Section 100(5) gives the
court the power to hear questions which were not formulated by it but they form a part of the
substantial question of law if the court is satisfied that case involves such a question.

34
1962 AIR 1314

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In Mahindra & Mahindra Ltd. v. Union of India & Anr35, the court observed that:

“Under the proviso, the Court should be ‘satisfied’ that the case involves a substantial question
of law and not a mere question of law. The reason for permitting the substantial question of
law to be raised should be recorded by the Court.”

2. QUESTION OF FACT

The general rule is that the High Court shall only entertain matters involving a substantial
question of law but Section 103 serves a supplementary to this.

Section 103 states: “Power of High Court to determine issues of fact— 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
the first instance and the lower Appellate Court, or
b) Which has been wrongly determined by such Court or Courts reason of a decision on
such question of law as is referred to in section 100.”

The particular section talks of two situations when a question of fact can be dealt with by the
court in a second appeal. Firstly, when a necessary issue has not been determined by either the
Lower Court or the Court of the first instance. Secondly, when the necessary issue has been
wrongly determined by the Courts on the substantial question of law which can properly be the
subject matter of the second appeal under Section 100.

In Jadu Gopal Chakravarty v. Pannalal Bhowmick & Ors36, the question came up before
the court that whether the compromise decree was obtained by fraud. The court held that though
it is purely a question of fact none of the lower courts has dealt with the question whether the
decree was obtained by committing a fraud on the Court and hence, this court can look into the
question of fact by exercising its power under Section 103.

35
1979 AIR 798
36
1978 AIR 1329

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Further in Haryana State Electronics Development Corporation Ltd. & Ors. v. Seema
Sharma & Ors37, dealt with the question that whether the promotion is applicable only on the
basis of seniority or it should conform to merit-cum-seniority. The Supreme Court observed
that such a question was not dealt by either of the lower courts and hence, remanded the matter
back to the High Court to re-hear the second appeal and decide the aforementioned questioned.
The Court further said that:

“Under Section 103 of the Civil Procedure Code, the High Court in the second appeal can
decide this issue since it is necessary for the disposal of the appeal and has not been decided
by the courts below. Relevant materials on this issue are also on record. After deciding that
question the High Court will decide whether respondent(s) claim for promotion has been
wrongfully denied.”

Further, the court clarified in Ramji Bhagala v. Krishnarao Krirao Bagra38 that an appellate
court cannot partly admit and partly reject a second appeal under Section 100 and Section 101.
It should either admit it wholly or reject it wholly.

3. MIXED QUESTION OF FACT AND LAW

While discussing the true scope of observations under Section 100 the Supreme Court in Shri
Meenakshi Mills v. C.I.T.39 pointed out that there lies a difference between the pure question
of fact and a mixed question of fact and law, and observations aforesaid have a reference to the
latter and not the former.

In Gopal Singh v. Ujagar Singh40, the question was whether a property is ancestral or not, or
whether, when a raiyat purchased the interest of the proprietor, there is a merger of two
interests, is a mixed one of fact and law. Though ordinarily, a second appeal does not lie on the
finding of fact, when there is a legal conclusion that is necessary to be drawn from the finding
of fact, a second appeal will lie on the ground that the legal conclusion was erroneous.

37
CIVIL APPEAL NO.1340 OF 2009 (SPECIAL LEAVE PETITION (CIVIL) NO.13139 OF 2005)
38
(1982) S.C.C. 433]
39
[1963] 49 ITR 156 (Mad)
40
1955 SCR 86

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4. CONCURRENT FINDING OF THE FACTS

Generally, the concurrent finding of the fact by the lower court is not disturbed by the High
Court by the virtue of the application of the same set of principles in the determination by two
different lower courts. However, the power of the High Court in this regard will be subject to
the grounds laid down in Section 100 and Section 103.

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NO SECOND APPEAL IN CERTAIN CASES

The scope of application of a second appeal has been made limited by Section 102 to the cases
wherein the subject matter of the original suit should exceed three thousand rupees.

Section 102 reads as :

“No second appeal in certain suits – No second appeal shall lie in 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.”

Moreover, no appellate court has the jurisdiction to entertain a second appeal on an erroneous
finding of the fact, however gross or inexcusable the error may seem to be.

However, there is no absolute prohibition on the appellate court to entertain a second appeal
on a question of fact. The court in Jagdish Singh v. Natthu Singh41 laid down that if the court
is satisfied that the finding of fact by the lower court was vitiated due to non-consideration of
relevant evidence or consideration of an evidence which had no ulterior impact on the findings
i.e. the finding of the fact had been rendered perverse, then the appellate court has to
jurisdiction to deliberate upon the findings of the facts.

DESIRABLE LIMITATIONS ON THE SCOPE OF SECOND APPEAL

Having regard to all the relevant aspects of the right of second appeal in appropriate cases we
may come to a conclusion that the said right is confined to the cases wherein:

a) A question of law is involved; and,

b) The question of law so involved is substantial.

The mere fact that a question of fact has been wrongly determined should not be criteria for
entertaining a second appeal. The justification of a second appeal should rest solely on the
criteria as laid down in Section 100.

41
1992 AIR 1604

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Furthermore, the mere fact that finding of the fact is supposed to be perverse of manifestly
unjust will not be sufficient. The court in Bharatha Matha & Anr. v. R. Vijaya Renganathan
& Ors42 laid down that the judgement rendered should suffer from additional infirmity of non-
application of mind.

42
AIR 2010 SC 2685

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CONCLUSION

The right to appeal arises as soon as the judgement is pronounced by a competent court. It is
not essential that such right is given only to the party on whom an adverse decision is
pronounced but is applicable to both parties equally. Thus, the right to appeal is vested on the
parties as soon as the proceedings begin and arises when a judgement is pronounced.

It can be summarised that the law can at most extent be applicable to cases involving a
substantial question of law and it becomes the responsibility of the appellate court to formulate
such a question after referring to the memorandum of appeal submitted by the appellant.

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 favor, 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 doesn’t
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.

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BIBLIOGRAPHY

 BOOKS REFERRED
1. C.K. Takwani, Civil Procedure, 18th ed. (2017), Eastern Book Company
2. M.P. Jain; The Code of Civil Procedure (2007), Wadhawa Publications, Nagpur
3. Avtar Singh; Code of Civil Procedure(1st ed.) 2008 Central Law Publications

 WEBSITES REFERRED
1. www.scconline.com
2. www.indiankanoon.org
3. www.google.co.in
4. http://www.lexusnexus.com/in/legal
5. http://www.jstor.com

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