PROJECT WORK

OF

Code of civil procedure

TOPIC: APPEALS FROM APPELLATE DECREE [ORDER 42]

SUBMITTED BY: Syed Renoba Nisar

Reg. no.: GU17R0389

Semester: 6th

SUBMITTED TO: Asst. Prof. Shubham sir

GLOCAL LAW SCHOOL

TABLE OF CONTENTS
1
1. Introduction
2. Second appeal
3. Grounds for second appeal
4. What is substantial question of Law?
5. Allowing revision to be treated as second appeal
6. Cases where second appeal is barred
7. Question of fact
8. Mixed question of fact and law
9. Concurrent findings of facts
10. Limitations of second appeal
11. Conclusion
12. Bibliography

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CASE LAWS:

 Kaleidoscope India Pvt. Ltd. v. Phoolan Devi

 Anisetti Bhagyavathi's case
 Durga Chowdhrani v. Jewahir Singh
 Fr. Abraham Mathews v. Illani Pillai
 Chunilal V. Mehta and Sons Ltd. v.Century Spg. and Mfg. Co. Ltd
 Jadu Gopal Chakravarty v. Pannalal Bhowmick & Ors
 Haryana State Electronics Development Corporation Ltd. & Ors. v. Seema Sharma
& Ors 
 Ramji Bhagala v. Krishnarao Krirao Bagra
 Shri Meenakshi Mills v. C.I.T.
 Gopal Singh v Ujagar Singh


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 INTRODUCTION

An appeal in common legal usage denotes challenging an order passed by an inferior authority or
court. It is a creature of a statute. This means that unless the Act passed by the Legislature under
which an order is passed permits an appeal against the order passed by an authority, no appeal
can be filed. In such a case a writ petition is always available but that is a whole different story. 
The Civil Procedure Code governs the procedure that is to be followed in a typical civil
litigation. It is this 'Act' which bestows an appeal to a litigant against an order or a judgment
passed by a civil court. It is this Act which provides the first appeal under Sec.96 and second
appeal under Sec.100

Right of appeal:

Every person has given right of appeal against decree. However, right of appeal is not an
inherent right. Rather it can only be availed where it is expressly granted by law. Appeal lies
against a decree and not against a judgment.

Nature of Right of Appeal:

Rights of appeal are substantive right and they are not mere matters of procedure. Right of
appeal is governed by the law prevailing at the date of the suit and not by law that prevails at the
date for the decision or at the date of filling of the appeal.

Appeals from a decree:

An appeal lays under section 96 CPC only from a decree because the decree marks the stage at
which the jurisdiction of the court which the appeal is made begins. As such unless a decree is
drawn up, no appeal lies from a mere finding, but if the finding amount to a decree, an appeal
would lie.

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Kinds of Appeal:

Appeal may be classified not following two kinds: first appeal and second appeal.

 PROCEDURE RELATED TO APPEALS

The appeal being the continuation of the suit is held not without any reason; it may be examined
in the light of the following propositions:

1. The appellate court has all the powers and has to do all those things necessary that a 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 remain the same.

2. In the same vein as above, the appellate court has to do all that has been done by the trail
court in that particular case, and then either agree or disagree from the trial court.

3. Hence, even the appellate court has to write a judgment and pass a decree. In the event of
the court upholding the lower court’s 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.

4. 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 the appellant, that the suit is said to have
been conclusively decided.

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WHO CAN APPEAL?

(i) Any party to the suit, who is adversely affected by the decree or the transferee of
interest of such party, has been adversely affected by the decree provided his name
was entered into record of suit.
(ii) An auction purchaser from an order in execution of a decree to set aside the same on
the grounds of fraud.
(iii) Any person who is bound by the decree and decree would operate res judicata
against him.

Kaleidoscope India Pvt. Ltd. v. Phoolan Devi 1

In this case, the Trial Court judge prohibited the exhibition of film both in India and abroad.
Session Judge permitted the exhibition of film in abroad. Subsequently, a party who moved in
appeal did not have locus standi. It was reversed by division bench saying that it’s not proper on
the part of judge as he entertained the suit on which party has no locus standi.

1
AIR 1995 Delhi 316

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  SECOND APPEAL (appeals against the appellate decrees)

The provisions relating to second appeal are contained in Secs. 100-103 and O.42

Order 42 C.P.C. reads as follows:-

Order 42 prescribes the procedure for hearing of the second appeal which says that the Rules
of Order 41 shall apply, so far as may be, to appeals from appellate decrees.

In Anisetti Bhagyavathi's case2, a Division Bench of this Court had an occasion to deal with
Sections 100, 103, Order 41 Rule 27 and Order 42 Rule 1 C.P.C. and held as follows:

The High Court while hearing second appeal cannot go into the question of fact, the application
for admitting additional evidence in a review petition in second appeal, whether such evidence
was within the knowledge of the party seeking production of the same, or could not have been
produced with due diligence at the time the decree was passed in second appeal cannot be
entertained.

In regard to appeals against the appellate decrees, commonly known as 'second appeals', the
provisions of Sections 100 to 103 and Order 42 Rule 1 C.P.C. apply. Section 100 C.P.C.
provides second appeal to the High Court from every decree passed in appeal by any Court
subordinate to it only if the High Court is satisfied that the case involves a substantial question of
law.

Section 100 of the Code of Civil Procedure, 1908 provides for a second appeal to the High Court
from an appellate decree. There is no vested right of appeal unless the statute so provides. If a
statute provides for a condition precedent to be satisfied before a court can exercise its appellate
jurisdiction, the court is under obligation to satisfy itself whether the condition prescribed is
fulfilled. Exercise of the appellate jurisdiction without the fulfillment of the statutory mandate
would be without jurisdiction and therefore a nullity.

2
AIR 1992 AP 304, 1992 (1) ALT 455

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Though Section 100 CPC deals with the High Court's jurisdiction in second appeal, it has the
effect of declaring that the first appellate court is the final court on facts and the High Court in a
second appeal cannot reappreciate evidence or facts unless the case involves a substantial
question of law.

Section 100 CPC was amended in 1976 imposing drastic restriction on the High Court's
jurisdiction in entertaining a second appeal. Even prior to the 1976 amendment, the first
appellate court was treated as the final court of facts by the Privy Council. The High Court had
no right to sit in appeal on facts.

In Durga Chowdhrani v. Jewahir Singh3  the Court had observed 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."

In this case the appellant, widow of a certain person, filed a suit against the elder brother of her
late husband to have a decree passed in her favour declaring her to be the heiress to her
husband’s property, which was being claimed by the elder brother, the respondent. The
appellant’s rights to the property depend upon her proving the fact that there had been a partition
of the family property and therefore, the elder brother had no claim to it. The respondent
contested this claim. The appellant tried to argue that the lower courts had not looked into the
available evidence properly, and hence it amounts to defect in the procedure of law, therefore
appealable to the higher court in the second appeal. The court in this case held that an erroneous
finding of the facts is a different thing from an error or defect in the procedure. This implies that
however gross the defect might be in the finding of the facts, it cannot be construed as
compelling the court of second appeal to deal with a question. Accordingly, the appeal in this
case was dismissed.

3
AIR 1959 SC 57

8
Section 100-A as inserted by the Amendment Act of 1976 enacts that no further appeal shall lie
against the decision of a single judge in a second appeal. In the statement of objects and reasons,
it has been stated, “Under the Letter Patent, an appeal lies in certain cases, against the decision of
a Single Judge in a second appeal. Such appeal, in effect, amounts to a third appeal. For the
purpose of minimizing delay in the finality of adjudications, is not desirable to allow more than
two appeals in the circumstances, new S. 100-A is being inserted to provide that there should be
no further appeal against the decision of a Single Judge.

In Fr. Abraham Mathews v. Illani Pillai 4, it was held that this provision is prospective and not
retrospective and would not affect vested right of Letters Patent Appeal against the judgment
pronounced before 1 February 1977.

 Grounds for Second Appeal

It is settled proposition of law that second will lie where judgment is uncertain in its meaning
and finding is vague and inconclusive or where reasons are not given at all. Following are the
grounds where second appeal is competent and not otherwise.

(i) Decision being contrary to law

A decision contrary to law is open to interference in second appeal, and the decree may be
amended to bring it in conformity with legal requirements.

(ii) Decision being contrary to the usage having force of law

The expression usage having the force of law means a local or family usage, which is
distinguished from general law. A usage having the force of law should be ancient, invariable,
certain and reasonable.

4
AIR 1981 Ker 129 (FB)

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 (iii) Decision having failed to determine some material issue of law or usage
having the force of law

The failure to determine, some material issue of law or usage having the force of law, by the
lower court, is a good ground for second appeal.

(iv) Substantial error or defect in procedure

Where there is a substantial error or defect in procedure, provided by CPC or by any other law
for the time being in force, which may possibly have produced error or defect in the decision of
the case upon merits, it can be a ground for second appeal.

 What is a substantial question of law?

The principles to determine whether a question is a substantial question of law or not was laid
down by a Constitution Bench of the Supreme Court in Chunilal v. Mehta and Sons
Ltd. v.Century Spg. and Mfg. Co. Ltd.5 while determining the said expression occurring in
Article 133(1) of the Constitution of India. The Supreme Court laid down the principles as
follows:

(i) If the question is of general public importance, or it directly and substantially affects the
rights of the parties. A substantial question of law is a substantial question of law as
between the parties in the cases involved, and does not mean a question of general
importance.
(ii) 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 (a doubt
about the principle of law involved) or calls for discussion of alternative views; then it is
a substantial question of law.
(iii) If the question is settled by the highest Court or the general principles to be
applied in determining the question are well settled and there is a mere question of
applying those principles (thus a misapplication of principle of law does not raise any
substantial question) or that the plea raised is palpably absurd, the question would not be
a substantial question of law.

5
AIR 1962 SC 131

10
The following questions may be said to be ‘substantial question of law’:

(i) Recording of a finding without any evidence on record;

(ii) Disregard/non-consideration of relevant/admissible evidence;
(iii) Taking into consideration irrelevant/inadmissible evidence;
(iv) Misconstruction of evidence or documents;
(v) Inference from or legal effect of proved/admitted facts;
(vi) A question of admissibility of evidence;
(vii) A question on which there is conflict of judicial opinion;

(viii) Placing onus of proof on a wrong party;

(ix) Disposal of appeal before disposing an application for additional evidence under O. 41

 Allowing Revision to be treated as second appeal

The High Court has allowed the revision to be treated as second appeal. The only point in issue
is from what date this revision should be treated to be converted into a second appeal:

a) from the date a misconceived civil revision petition was instituted

b) from the date is request was made for its conversion or
c) from the date it was allowed to be converted and registered as a second appeal

 Cases where second appeal is barred

Section 102 provides that no second appeal shall lie in the following suits

a) Suit of a nature cognizable by court of small causes

A suit the value of which does not exceed Rs.25000 is a suit of a nature cognizable by courts of
small causes. It may be tried either by small cause court or by a civil court, and in that case
second appeal is barred by section 102 of CPC.

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 b) Suits where value does not exceed Rs. 25,0000

NO second appeal shall lay in any other suit, where the value of the subject nature of the original
suit does not exceed Rs. 2, 50,000.

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 Singh 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.

 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.

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 and the appellate Court.
 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 & Ors 6the question came up before the
court that whether the compromise decree was obtained by fraud. The court held that though it is

6
1978 AIR 1329, SCR (3) 855

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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. Further in Haryana State Electronics
Development Corporation Ltd. & Ors. v. Seema Sharma & Ors 7dealt 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 Bagra 8 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.

 Order 42 lays down that all the rules of O. 41 also apply to second appeals. In such
cases, at the time of making an order for the haring of the second appeal, the court
formulates the substantial question of law as required by Sec. 100, and in doing so, the
Court may direct that the second appeal be heard on the question so formulated, and it is
not open to the appellant to urge any other ground in the appeal without the Court’s leave

 Mixed question of fact and law:

7
(2009) 7 SCC 311
8
AIR 1982 SC 1223, (1982) 1 SCC 433

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While discussing the true scope of observations under Section 100 the Supreme Court in Shri
Meenakshi Mills v. C.I.T.9 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 Singh10, 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.  

 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.

 Limitation of second appeal

A second appeal lies to a High Court within a period of 90 days from the date of the decree
appealed against.11

 Conclusion
9
1967 AIR 444,1967 SCR(1) 392
10
1954 AIR 579, 1955 SCR 86
11
Art. 116, Limitation Act, 1963

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The right to appeal arises as soon as the judgment 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 judgment is pronounced.

It can be summarized 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.

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BIBLIOGRAPHY

Referred Sites:

 http://www.legalblog.html
 http://www.legalindia.in
 http://www.indiakanoon.org
 blog.ipleaders.in
 www.google.co.in

Referred Book:

 C.K. Takwani Civil Procedure with Limitation Act, 1963[Eighth Edition]

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