LAW RELATING TO SECOND APPEAL UNDER CIVIL PROCEDURE CODE, 1908

Law is a set of rules or a system recognized in a particular country or community, that are created for regulating the actions of its members and conduct of a community which is enforced by the imposition of penalties. This set of rules is created and is enforceable by social or governmental institutions.

A notable feature of the constitution is that it accords a dignified and crucial position to the judiciary. The Judiciary is a system of courts that interpret and apply the law. The role of the courts is to decide cases by determining the relevant facts and the relevant law and using the relevant facts to the applicable law. The Indian Judicial system is managed and administered by officers of judicial service, unlike in the past when civil service officers were also part of the judicial system.

A judge is a person who presides over court proceedings, either alone or as a part of a panel of judges. The judge hears all the witnesses and any other evidence presented by the advocates of the case, assesses the credibility and arguments of the parties, and then issues a ruling on the matter to settle a legal dispute in a final and public manner on their interpretation of the law.

Our country has well-ordered and well-regulated judicial machinery with the Supreme Court at the apex. The jurisdiction of the Supreme Court is extensive. The supreme court is the highest in the country. It is the ultimate arbiter in all Constitutional matters and enjoys advisory jurisdiction.

Then there exists a High Court in each state, the general Court of appeal from the Courts subordinate to them. It has the power to issue writs.

Each district has one District Court, they administer justice at a district level. These court decisions are subject to the appellate jurisdiction of the concerned High Court.

The Constitution states that the Supreme Court is the guardian of the Constitution, and the highest court of appeal. It can hear an appeal from any court of the tribunal in the country and can issue writs. The Supreme Court is the highest in the federation.


“Trial means the process of judicial determination of lies in accordance with law.” In a case after the plaintiff has presented the plaintiff and the defendant has the written statement. The Court has framed the issue, and the case is fixed for hearing and the party having the right begins to produce his evidence, then, the trial of suit commences.

After the conclusion hearing and trials, the court pronounces the judgment in open court. Judgment means the statement the judge gives on the ground of a decree or order.

An appeal is the judicial examination of the decision by a higher court of an inferior court. Any person who feels aggrieved by a decree or order passed by a court may prefer an appeal in a superior court. If an appeal is provided against the decree or order they may make an application for review or revision.

The first appeal is against a decree passed by a court, whereas a second appeal lies against a decree passed by a first appellate court.

Section 100 to 103, 107-108, and Order 42 of the Code of Civil Procedure deal with second appeals. The right to appeal exists when a statute expressly confers it.


Section 100 of CPC explains that 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, it shall formulate such questions. A high court can only entertain an appeal if it involves a substantial question of law. The legislature has not defined the term “substantial question of law”, though the expression has been used in the Constitution as well as in other statutes.


Section 101 further says that no second appeal shall lie except on the ground mentioned in section 100 of CPC.


Section 102 of CPC confronts that If the amount doesn’t exceed 25000 of the subject matter of the original suit as the recovery of money, it can not lie as an appeal.


Section 103 of the Code of Civil Procedure confers powers on the High Court to decide questions of facts in second appeal even in cases where the lower appellate court has not determined the facts.


CPC’s section 107 teaches us about the powers of the appellate court.

(1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power.

(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein.

This provision provides a systematic arrangement of an appellate court’s powers, including the final determination of a case.

Section 108 of CPC specifies two parameters that will apply to the appeals concerning those grounds only. They are appeals from appellate decrees that are the rights of the parties laid down by an appellate court while considering an appeal by one of the parties in the suit, and to those Orders under the Code of 1908, or any other special, or local law which have not been provided with a proper procedure to be followed for its execution.


Order 42 CPC describes that,

Rule 1-The rules of Order XLI shall apply, so far as may be, to appeals from appellate decrees.

Rule 2- At the time of making an order under rule 11 of Order XLI for the hearing of a second appeal, the Court shall formulate the substantial question of law as required by section 100, and in doing so, the Court may direct that the second appeal be heard on the question so formulated and it shall not be open to the appellant to urge any other ground in the appeal without the leave of the Court, given by the provision of section 100

Rule 3-Reference in sub-rule (4) of rule 14 of Order XLI to the Court of first instance shall, in the case of an appeal from an appellate decree or order, be construed as a reference to the Court to which the appeal was preferred from the original decree or order.


An appeal is a continuation of a suit. A decree passed by an appellate court would be consulted to be a decree passed by the court of the first instance. The appellate court shares the same power as the original court. After the entire proceedings are before the appellate court they review the case with shreds of evidence and conclude. Right of appeal is created and provided based on the principle that ‘all men are fallible and judges are human beings who may commit mistakes’, and this mandate applies to all levels of court judges from lowest to highest courts.



This article is written by Prapti Prajeeta Mahanta of Symbiosis law school, Nagpur.

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