PROJECT WORK

OF

Code of civil procedure

TOPIC: APPEALS FROM APPELLATE DECREE[ORDER 42]

Reg. no.: GU17R0389

Semester: 6 th

SUBMITTED TO: Asst. Prof. Shubham sir

GLOCAL LAW SCHOOL

1
 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 lies 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.

Kinds of Appeal:

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

PROCEDURE RELATED TO APPEALS

2
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 judgement 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.

3
 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 AIR 1995 Delhi 316

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 its not proper on
the part of judge as he entertained the suit on which party has no locus standi.

4
SECOND APPEAL ( appeals against the appellate decrees)

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 case1, 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 fulfilment of the statutory mandate
would be without jurisdiction and therefore a nullity

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.

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

5
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 Singh  the Court had observed that:

"There is no jurisdiction to entertain a second appeal on the ground of an erroneous finding of

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.

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.

2
AIR 1959 SC 57

6
(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.

(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 test 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.3 while determining the said expression occurring in Article 133(1) of the
Constitution of India. The Supreme Court laid down the test as follows:

"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 calls for discussion of alternative views. 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 or that the plea raised is palpably
absurd the question would not be a substantial question of law."

3
AIR 1962 SC 131

7
The above test laid down by the Supreme Court is to be applied by the High Courts to acquire
jurisdiction under Section 100 CPC.

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.

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

NO second appeal, shall lie in any other suit, where the value of the subject nature of the original
suit does not exceed Rs. 2,50000.