Appeals: first appeals, second appeals, appeals from orders and appeals to the Supreme Court - Civil Procedure Code and Limitation Act

← All Civil Procedure Code and Limitation Act topics Past papers

On this page

1. First appeal (section 96)
2. Procedure in first appeals (Order XLI)
3. Second appeal (section 100)
4. Appeals from orders (sections 104 to 106 and Order XLIII)
5. Appeals to the Supreme Court (sections 109 and 112, Order XLV)
6. First and second appeals compared
How this is examined

Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

Appeal is a creature of statute. There is no inherent right of appeal. A suit is an inherent right; an appeal lies only where a statute gives it. Once given, the right vests on the date the suit is filed, and a later amendment does not take it away unless it says so expressly or by necessary implication. The Code gives four kinds: first appeal (section 96), second appeal (section 100), appeal from orders (section 104), and appeal to the Supreme Court (section 109).

1. First appeal (section 96)

An appeal lies from every decree passed by a court exercising original jurisdiction to the court authorised to hear appeals from it, unless the Code or another law expressly provides otherwise (section 96(1)). Three qualifications follow:

an appeal lies from an original decree passed ex parte (section 96(2));
no appeal lies from a decree passed with the consent of parties (section 96(3));
no appeal lies, except on a question of law, from a decree in a suit of the nature cognizable by Small Cause Courts where the value does not exceed ₹10,000 (section 96(4)).

Who may appeal. A party to the suit adversely affected by the decree, or his legal representative or transferee; and a person not a party, with leave of the appellate court, if he is bound by or prejudicially affected by the decree. A party who has wholly succeeded cannot appeal merely to challenge an adverse finding. In Banarsi v. Ram Phal, 2003 INSC 94, (2003) 9 SCC 606, the Court held that an appeal lies only against a decree, by a person aggrieved by it; a respondent who is satisfied with the decree but objects to a finding may file a cross-objection under the Explanation to Order XLI rule 22; and a respondent who wants the decree varied in his own favour must file a cross-objection; without one, the appellate court will not ordinarily enlarge the relief given to him.

Nature. A first appeal is a rehearing on facts and law. In Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179, the Court held that the first appellate court is the final court of fact and must deal with the reasoning of the trial court and the evidence, giving reasons of its own, particularly when it reverses findings of fact.

Limitation. Ninety days to a High Court, thirty days to any other court, from the date of the decree (Article 116, Limitation Act), with the time to obtain a copy excluded under section 12.

2. Procedure in first appeals (Order XLI)

Memorandum (rule 1) signed by the appellant or pleader, with a copy of the judgment, setting out concisely and under distinct heads the grounds of objection, without argument or narrative. In a money decree, the appellant may be required to deposit the disputed amount or furnish security (rule 1(3)). A delayed appeal must be accompanied by an application for condonation (rule 3A).
Stay (rule 5). An appeal is not a stay. The appellate court may stay execution for sufficient cause, but only if satisfied that substantial loss may result, the application was made without unreasonable delay, and security has been given.
Summary dismissal (rule 11). The appellate court may dismiss the appeal after hearing the appellant, without notice to the respondent, recording reasons.
Default and rehearing (rules 17 to 21). An appeal dismissed for default may be readmitted for sufficient cause (rule 19); a respondent against whom an appeal was heard ex parte may apply for rehearing (rule 21).
Cross-objection (rule 22). A respondent who has not appealed may support the decree on any ground, attack a finding against him, and take any cross-objection he could have taken by appeal, filed within one month of service of notice of the hearing.
Remand (rules 23 and 23A). Where the trial court decided on a preliminary point and is reversed, or decided otherwise and a retrial is necessary, the appellate court may remand. Where the evidence is sufficient, it decides the case itself (rule 24). It may frame issues and refer them to the trial court (rule 25).
Additional evidence (rule 27). Not as of right. Allowed only where the trial court wrongly refused to admit evidence, or the party shows that despite due diligence it was not within his knowledge or could not be produced, or the appellate court itself requires it to pronounce judgment or for any other substantial cause. Reasons must be recorded.
Judgment (rule 31) states the points for determination, the decision, the reasons, and the relief.
Wide power (rule 33). The appellate court may pass any decree that ought to have been passed, in favour of any respondent, even one who did not appeal or object.

The powers of an appellate court are summarised in section 107: to determine a case finally, to remand, to frame issues and refer them for trial, and to take additional evidence, with the same powers as a trial court. A decree is not reversed for a misjoinder or non-joinder or an irregularity not affecting the merits or jurisdiction, except non-joinder of a necessary party (section 99).

3. Second appeal (section 100)

An appeal lies to the High Court from every decree passed in appeal by a subordinate court if the High Court is satisfied that the case involves a substantial question of law (section 100(1)). The memorandum must precisely state that question; the High Court formulates it and hears the appeal on it, though it may for reasons recorded hear another substantial question not formulated (section 100(3) to (5)). No second appeal lies on any other ground (section 101), so findings of fact, however erroneous, are not reopened. Section 103 lets the High Court decide an issue of fact only where the courts below did not decide it or decided it wrongly because of the error of law. No second appeal lies in a suit for recovery of money not exceeding ₹25,000 (section 102). Order XLII applies Order XLI to second appeals.

What is a substantial question of law? The test in Sir Chunilal V. Mehta & Sons v. Century Spinning & Mfg. Co., 1962 INSC 81, AIR 1962 SC 1314, is whether the question is of general public importance, or directly and substantially affects the rights of the parties, and whether it is either an open question not finally settled by the Supreme Court or the Privy Council, or not free from difficulty, or calls for discussion of alternative views. In Hero Vinoth v. Seshammal, 2006 INSC 305, (2006) 5 SCC 545, the Court summarised the position: the question must arise from the pleadings and findings, must be one of law (not fact), and must be substantial, that is, debatable and material to the decision. A finding based on no evidence, or on misreading of evidence, or in disregard of a settled rule of law, may give rise to such a question.

No Letters Patent appeal (section 100A). Where an appeal from an original or appellate decree or order is heard and decided by a single judge of a High Court, no further appeal lies from his judgment.

4. Appeals from orders (sections 104 to 106 and Order XLIII)

Orders are appealable only if the Code or another law says so. Section 104(1) lists orders under section 35A (compensatory costs), sections 91 and 92 refusing leave, section 95 (compensation for wrongful interim orders), orders imposing a fine or directing arrest or detention other than in execution, and any order under the rules from which an appeal is expressly allowed. That last category is Order XLIII rule 1, whose main items are:

(a) return of a plaint under Order VII rule 10;
(c) and (d) rejection of applications under Order IX rules 9 and 13;
(f) orders under Order XI rule 21;
(j) setting aside or refusing to set aside an execution sale under Order XXI rules 72 and 92;
(k) refusing to set aside an abatement under Order XXII rule 9;
(na) rejecting an application to sue as an indigent person;
(p) orders in interpleader suits;
(q) and (r) orders under Order XXXVIII and Order XXXIX (injunctions);
(s) orders under Order XL rules 1 and 4 (receivers);
(u) orders of remand under Order XLI rules 23 and 23A;
(w) an order granting review under Order XLVII rule 4.

No second appeal lies from an order passed in appeal under section 104 (section 104(2)). Where an order is not appealable, any error in it affecting the decision may be raised in the appeal against the decree (section 105(1); Order XLIII rule 1A). But a party who does not appeal against an appealable order of remand cannot later dispute its correctness (section 105(2)).

5. Appeals to the Supreme Court (sections 109 and 112, Order XLV)

An appeal lies to the Supreme Court from a judgment, decree or final order of a High Court in a civil proceeding if the High Court certifies that the case involves a substantial question of law of general importance and that in its opinion the question needs to be decided by the Supreme Court (section 109, mirroring Article 133 of the Constitution). Order XLV gives the procedure for the certificate. Section 112 saves the Supreme Court's power to grant special leave under Article 136.

6. First and second appeals compared

From what. A first appeal lies from an original decree; a second appeal from an appellate decree.
To which court. A first appeal lies to the District Court or the High Court depending on value; a second appeal lies only to the High Court.
Grounds. A first appeal may be on fact, law, or mixed questions; a second appeal only on a substantial question of law.
Limitation. Thirty or ninety days depending on the forum for a first appeal; ninety days for a second appeal, since it always lies to the High Court.

How this is examined

“Appeal” and “Appeals” were set as six-mark notes in June 2025 and August 2024: cover sections 96, 100 and 104 in a paragraph each, with the four kinds of appeal. A ten-mark question on second appeals needs section 3 with Chunilal Mehta and Hero Vinoth. Problems typically ask whether an appeal lies from a consent decree (section 96(3)), from a finding by a successful party (Banarsi), or from an order (section 104 and Order XLIII).