Appeal

Appeals – Civil Law

Almost all major legal jurisdictions consist of appeal provisions, and the civil laws are not on the
contrary. The rights of appeal under the Civil Procedure Code are not natural or inherently
attached to the litigation but is rendered by the statue or by rules enforced by the statue. This
article delves into the concept of appeals under the Civil Procedure Code.
Grounds of an Appeal
An appeal under the Civil Procedure Code can be made under the following grounds:

 A decision has already been made by a judicial or administrative authority.

 A person is aggrieved of such decision, whether or not he is a party to the proceeding.

 The appeal is entertained by a reviewing body.

Who Can File an Appeal?
Any of the following persons can file an appeal:

 Any party to the original proceeding or his/her legal representatives.

 Any person claiming under such party or a transferee of interests of such party.

 Any person appointed by the court as the legal guardian of a minor.

 Any other aggrieved person after taking leave of the court.

Who Cannot?

 A party which has relinquished its right of appeal as per an agreement which is clear and
unambiguous.

 A party which has availed the benefits under a decree.

 Parties with a consent decree. Consent, in this case, could be a lawful agreement or
compromise, or could even be presumed from the conduct of the parties.

 Parties, whose factum or compromise is in dispute or hasn’t been formulated.

 Parties involved in petty cases.

 No legal representatives are entitled to file an appeal against a deceased person.

Features of an Appeal
  The rights of appealing are not inherent, and therefore must be created in express
terms by the statue. Thus, these rights differ from the rights of filing suits, which is
inherent in nature.

 It is a substantive right.

 The rights under this provision accrue from the day of the institution of the suit.

 These rights cannot be made void, except through a statue (either expressly or by
implication).

 The discretion of the appellate authority is conclusive.

Appellate Authority – refers to the authority which undertakes and adjudicates the initial review
appeal.
Memorandum of Appeal
Any appeal under these provisions must be supported with a memorandum of appeal, which is
a document comprising of the grounds of appeal. The constituents of a valid memorandum of
appeal include:

 The grounds for filing an appeal.

 Signature of the appellant or his/her pleader.

 The attachment of the certified copy of the original judgement.

 The remittance of the decretal amount or security (in case of a money decree).
The appellant, with respect to this provision, is not entitled to take any grounds or objection
except the ones mentioned in the memorandum. However, the court may accept such
objections on its own accord, provided the opposite party is provided with adequate
opportunities to contest such grounds.
The court has the right to reject or amend any memorandum which it finds to be inappropriate.
The court shall record the reasons for such rejection.
Decretal – “of the nature of a decree.”
Appeals from Original Decrees

 Appeals from original decrees, which is performed by the appellate court, are preferred
in a court which is superior in rank to the Court passing the decree.

 Appeal for such decrees may lie on an original decree passed ex parte.

 No appeals will be placed if the decree is passed with the consent of the parties.

 The appeal from original decrees lies on a question of law.

  No appeal lies in any suit of the nature cognizable by Courts of small causes if the
amount or value of the subject matter of the original suit is confined to a sum of Rs.
10,000.

 The appellate court may remand a case to a trial court if the latter has dispensed of the
case without recording any findings.

 The decision of the appellate authority is conclusive.

 If an appeal under this provision is heard by a bench of multiple judges, the opinion of
the majority will be considered.

 In the absence of a majority, the original decree will stay.

 Where the bench digresses on any point of view, the same may be determined by any
number of the remaining judges of the court, and the decision shall be taken by a
majority of the judges hearing the appeal, which includes the judges who have heard it
originally.

 The judgement may confirm, modify or reverse the decree.

Remand of a Case
Remand, in this context, refers to the reverting of a case. The appellate court may revert the
case to the trial court if the latter has disposed the suit on a preliminary point without recording
any findings. The appellate court may also demand the trial court to admit the suit in its original
number in the register of civil suits. The evidence (if any) recorded in the original suit could be
used as evidence if the case is remanded to the trial court. An order of demand disqualifies the
verdict of the lower court and is appealable.
On the other hand, the appellate court is not entitled to remand a case if the lower court has
misconceived the evidence or, the lower court has provided a verdict on insufficient material.
Furnishing of Additional Evidence
The general course of law doesn’t allow any parties to an appeal to produce additional
evidence, be it oral or documentary. However, the appellate court may permit the same under
the following circumstances:

  If the lower court declined the acceptance of any evidence despite having the grounds
to accept the same.

 The party adducing the evidence substantiates that the evidence was not within his/her
knowledge despite exercising due diligence earlier.

  If the party substantiates that proper evidence could not be produced by him/her in
spite of exercising due diligence.
  The appellate court finds it essential to examine any document or witnesses to facilitate
the adjudication of the case
Decree of the Appellate Court
Decree refers to the legal implications of a particular act. The decree of the appellate court shall
include:

 The date of the judgement.

 The number of the appeal.

 The names and description of the parties.

 The grant of relief and any other adjudication made.

 The total cost incurred.

 The property from which the cost was incurred.

 The property from which the cost will be payable.

 The proportion of payment of costs.

 Signature and date of the judges.

Second Appeal
Section 100 of the Civil Procedure Code provides that an appeal can be moved to the High
Court from every decree passed in appeal by any subordinate Court if the High Court finds that
the case includes a substantial question of law.
Taking this into context, the memorandum of appeal must clearly state the substantial question
of law in this appeal. If the High Court deems it to be satisfactory, it may go on to formulate the
pertinent questions, based on which the appeal would be heard. Also, the High Court may hear
the appeal on any other substantial question of law not formulated by it if it feels that the case
involves such question.
It may be noted that a second appeal is only meant for questions of law and hence cannot be
made on the grounds of an erroneous finding of fact. On the same page, in the absence of any
errors or defects in the procedure, the finding of the first appellate court will be considered as
final, if the particular Court produces evidence to support its findings.
In another important note, second appeals cannot be made for a decree if the subject matter of
the original suit is intended to recover a sum of Rs. 25,000.
Difference Between Second Appeal and Revision
 Despite the similarities in outlook, the nature of a second appeal and revision vary, the likes of
which has been elaborated below:

S. No Second Appeal Revision

1 Involves a substantial question of law Involves a jurisdictional error

2 Filed to oppose a decree passed by the appellate Filed in cases where there was not any appeal in the first
court place

3 The High Court is entitled to rectify a legal error The High Court is not entitled to amend the decision of a
of the lower court lower court even in the case of a legal mistake

4 The High Court may decide an issue of fact An issue of fact cannot be decided by the jurisdictional
body

5 The High Court is not vested with any The High Court may decline interference on the
discretionary powers, and hence it cannot refuse satisfaction that substantial justice has been done
to grant relief on equitable grounds

Appeals from Orders

Appeals from orders could be placed with respect to the following pronouncements on the
grounds of any defect or irregularity in law:

 Any orders under Section 35A of the Code allowing special costs, and orders under
section 91 or 92 refusing leave to institute a suit of the kind referred to in Section 91 or
Section 92.

 Any orders under Section 95, which involves the compensation for obtaining attachment
or injunction on insufficient grounds.

 Orders under the code which deals with the imposition of fine, direction of detention or
arrest of any person except in execution of a decree.

 Appealable orders as prescribed under Order 43, R.I. However, appeals cannot be filed
based on any order enlisted in clause (a) and from any order passed in appeal under
Section 100.
Appeals by Indigent Persons
Any person who is not capacitated to remit the fee required to file the memorandum may file
an appeal as an indignant person. If the court declines the application of a person to appeal in
this manner, it may necessitate the applicant to remit the required court fee within a
prescribed time-frame.
Appeals to the Supreme Court
Appeals to India’s highest jurisdictional body can be made if the former considers the case to be
appropriate for an appeal to the Supreme Court or when a special leave is granted by the
Supreme Court itself. Appeals can be filed to the Supreme court by filing a petition with the
court which enacted the decree, upon which the petition would be heard and disposed of
within a period of sixty days. Petitions submitted for this purpose must state the grounds of
appeal. Also, it must include a plea for the issuance of a certificate stating that the case involves
a substantial question of law which needs to be decided by the Supreme Court.
The opposite party will be provided with an opportunity for raising any objections against the
issue of such certificate. The petition would be disposed of if the applicant is denied the
certificate. If accepted, the appellant would be required to deposit the required security and
costs within a prescribed time-frame.
After the applicant performs the above obligations, the court from whose decision an appeal is
preferred shall declare the appeal as admitted, an intimation of which will be addressed to the
respondent. Further to this, the jurisdictional body forwards a precise copy of the record under
seal and furnishes the copies of such papers in the suit.
Circumstances for Stay of Execution of Decree
Stay of execution of decree can be made under the following circumstances:

 The party requesting for the stay is likely to incur substantial losses in the absence of
such discretion.

 The application for stay is made without any unreasonable delay.

 The applicant has provided security for the due performance of the particular order or
decree. If the applicant has failed in this commitment due to which the application gets
rejected, the security can still be deposited within a time-frame of 30 days, upon which
the application would be accepted.

First appeals under the Code of Civil Procedure, 1908

Table of Contents

 Introduction
 Meaning of appeal
  Essentials of appealing cases
 Right to appeal
 One right to appeal
 No right to appeal
 Distinction between suit and appeal
 Garikapati Veeraya v. Subbiah Chaudhary
 The distinction between appeal and revision
 First appeal
 Second appeal
 Conversion of an appeal into revision
 Who may appeal?
o Appeal by one plaintiff against another plaintiff
o Appeal by one defendant against another defendant
 Who cannot appeal?
 The appeal against ex parte decree
 No appeal against consent decree
 No appeal in petty cases
 The appeal against Preliminary Decree
 No appeal against a finding
 The appeal against a dead person
 Forms of appeal
 Forum of appeal
 Presentation of appeal
 Summary dismissal
 Doctrine of merger
 Cross objections
 Powers of Appellate Court
 Duties of an appellate court
 Judgment
 Decree
 Letters patent appeal
 Appeal to SC
 Conclusion
 References

Introduction
An appeal is a remedial concept determined as an individual’s right to seek justice against an
unjust decree/order via referring it to a Superior Court. Sections 96 to 99A; 107 to 108 & Order
41 of the  Code of Civil Procedure, 1908 deal with appeals from original decrees known as First
appeals. 

Meaning of appeal
The term ‘appeal’ nowhere has been defined under the CPC. The Black’s Law Dictionary, while
construing the concept of ‘appeal’ in its most original and natural sense, explains it as “the
complaint to a superior court for an injustice done or error committed by an inferior one,
whose judgment or decision the Court above is called upon to correct or reverse. It is the
removal of a cause from a Court of inferior jurisdiction to one of superior jurisdiction, for the
purpose of obtaining a review and retrial”. 

Essentials of appealing cases

An appeal is a proceeding where a higher forum reconsiders the decision of a lower forum, on
questions of law & fact with jurisdiction to confirm, reverse, modify the decision or remand the
matter to the lower forum for fresh decision in compliance of its directions. The essentials of
appealing cases can be narrowed down to 3 elements:

 A decree passed by a judicial/administrative authority;

 An aggrieved person, not necessarily a party to the original proceeding; and
 A reviewing body instituted for the purposes of entertaining such appeals.

Right to appeal
The right to appeal is a statutory & substantive one. The statutory nature of an appeal implies
that it has to be specifically conferred by a statute along with the operative appellate
machinery as opposed to the right to institute a suit, which is an inherent right. It is substantive
in the sense that it has to be taken prospectively unless provided otherwise by any statute. This
right could be waived off via an agreement, and if a party accepts the benefits under a decree,
it can be estopped from challenging its legality. However, an appeal accrues to the law as found
on the date of the institution of the original suit.

One right to appeal

Section 96 of the CPC provides that an aggrieved party to any decree, which was passed by a
Court while exercising its original jurisdiction, is conferred with at least one right to appeal to a
higher authority designated for this purpose, unless the provisions of any statute make an
exception for it. Section 97, 98 and 102 of the CPC enumerate certain conditions under which
no further appeal is permitted, hence attributing to a single right of appeal.

No right to appeal
No person has a right to appeal against a decision unless he is a party to the suit, except on
special leave of the Court. An essential element to be taken into account while considering
one’s right to appeal is whether such person is adversely affected by the decision/suit, which is
a question of fact to be determined in each case. 

Distinction between suit and appeal

 Suit Appeal

Where a cause is created and issues are An appeal only reviews & corrects the
disputed on questions of both facts and proceedings in a case already constituted
law, it is known as a suit. but does not create a cause.

A suit is an attempt to achieve an end via a As per  Dayawati v. Inderjit, it is the

legal procedure instituted in a Court of continuation of a suit in certain
law for enforcing one’s right/claim. situations.

An appeal is filed in an Appellate Court

A suit is filed in the lowest Court in its
for the purposes of reviewing the
respective hierarchy for trial.
decision of the inferior Court.

Garikapati Veeraya v. Subbiah Chaudhary

In the instant case, it was held that the pre-existing right to appeal to the Federal Court
continued to exist and the old law which created such a right also continued to exist. It
construed to the preservation of this right while recognizing the change in its judicial machinery
from the Federal Court to the Supreme Court. However, the continuance of the old law is
subject to the provisions of the Constitution.

The distinction between appeal and revision

Appeal  Revision

A revision to High Court is available

An appeal lies to a Superior Court from every
only in those cases and against such
original decree unless expressly barred.
orders where no appeal lies.
 There is no such right of revision
A right of appeal is one of substantive nature
because revisional power is purely
conferred by the statute.
discretionary.

An appellate jurisdiction can be exercised

only through a memorandum of appeal filed The revisional jurisdiction can be
before the Appellate Court by the aggrieved exercised suo motu as well.
party and cannot be exercised suo motu.

An application for revision is

An application for appeal is maintainable on
maintainable on the ground of
legal grants as well as on question of fact.
jurisdictional error.

An appeal abates if the legal representative A revision may not abate and the High
of the deceased are not brought on record Court has a right to bring the proper
within the time allowed by law. parties before the Court at any time.

The High Court or the revisional Court

A Court of appeal can, in the exercise of its
cannot, in the exercise of its revisional
powers, set aside the findings of facts of
powers, set aside the findings of facts
subordinate Courts.
of subordinate Courts.

First appeal
Section 96 of the CPC provides that an appeal shall lie from a decree passed by any Court
exercising original jurisdiction to the authorized appellate Courts, except where expressly
prohibited. A combined reading of Sections 2(2), 2(9), & 96 of the CPC indicates that a regular
First appeal may/may not be maintainable against certain adjudications. 

Second appeal
Section 100 provides for a second appeal under this code. It states that an appeal shall lie to the
High Court from a decree passed in the first appeal by a subordinate Court, excepting the
provisions speaking to the contrary. The scope of exercise of jurisdiction under this section is
limited to a substantial question of law framed at the time of admission of appeal or otherwise. 

Conversion of an appeal into revision

In the case of Bahori v. Vidya Ram, it was held that since there’s no specific provision under the
CPC for the conversion of an appeal into a revision or vice versa, the exercise of power by the
Court has to be only under Section 151. Further, the inherent powers of the Court, though
discretionary, permit it to pass such orders as may be required to meet the ends of justice. The
only precondition to such conversion is that due procedure is adhered to during the filing of the
original appeal/revision.

Who may appeal?

A regular first appeal may be preferred by one of the following:

 Any party to the suit adversely affected by a decree, or if such party is dead, by his legal
representatives under Section 146;
 A transferee of the interest of such party, who so far as such interest is concerned, is
bound by the decree, provided his name is entered on the record of the suit;
 An auction purchaser may appeal against an order in execution setting aside the sale on
the ground of fraud;
 No other person, unless he is a party to the suit, is entitled to appeal under Section 96.

A person, who is not a party to the suit, may prefer an appeal from a decree/order if he’s
bound/aggrieved/prejudicially affected by it via special leave of the appellate Court.

Appeal by one plaintiff against another plaintiff

In Iftikhar Ahmed v. Syed Meherban Ali, it was concurred that if there exists a conflict of interest
between plaintiffs and it is necessary to resolve it via a Court to relieve the defendant, and if it
is in fact decided, it will operate on the lines of res judicata between co-plaintiffs in the
subsequent suit. 

Appeal by one defendant against another defendant

The rule in a case where an appeal is preferred not against the originally opposite parties but
against a co-defendant on a question of law, it could be allowed. Such an appeal would lie even
against a finding if it’s necessary while operating as res judicata (a matter that has been
adjudicated by a competent Court and hence may not be pursued further by the same parties).

Who cannot appeal?

A party who waives his/her right to prefer an appeal against a judgment cannot file it at a later
stage. Further, as inferred from Scrutton L.J.’s words:

“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
judgment as being good and then appeal against it as being bad”,

If a party ratifies any decision of the Court by accepting and acknowledging the provisions
under it, it may be estopped from appealing that judgment in a higher forum. 

The appeal against ex parte decree

In the first appeal under Section 96(2), the defendant on the merits of the suit can contend that
the materials brought on record by the plaintiff were insufficient for passing a decree in his
favour or that the suit was not otherwise maintainable. Alternatively, an application may be
presented to set aside such ex parte decree (it is a decree passed against a defendant in
absentia). Both of these remedies are concurrent in nature. Moreover, 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. 

No appeal against consent decree

Section 96(3), based on the broad principle of estoppel, declares that no decree passed by the
consent of the parties shall be appealable. However, an appeal lies against a consent decree
where the ground of attack is that the consent decree is unlawful being in contravention of a
statute or that the council had no authority. 

No appeal in petty cases

Section 96(4) bars appeals except on points of law in cases where the value of the subject-
matter of the original suit does not exceed Rs. 10,000, as cognizable by the Court of Small
Causes. The underlying objective of this provision is to reduce the number of appeals in petty
cases.

The appeal against Preliminary Decree

Section 97 provides that the failure to appeal against a preliminary decree is a bar to raising any
objection to it in the appeal against a final decree. The Court in the case of Subbanna v.
Subbanna provides that, the object of the section is that questions which have been urged by
the parties & decided by the Court at the stage of the preliminary decree will not be open for
re-agitation at the stage of preparation of the final decree. It’d be considered as finally decided
if no appeal is preferred against it. 
No appeal against a finding
The language of Section 98(2) is imperative & mandatory in terms. The object appears to be
that on a question of fact, in the event of a difference of opinion, views expressed by the lower
court needs to be given primacy & confirmed. The appellate court cannot examine the
correctness of the finding of facts and decide upon the correctness of either view.

The appeal against a dead person

A person who has unknowingly filed an appeal against a person who was dead at the time of its
presentation shall have a remedy of filing an appeal afresh against the legal heirs of such
deceased in compliance of the Limitation Act.

Forms of appeal
Appeals may be broadly classified into two kinds:

 First appeal; and

 Second appeal.

The sub-categories under appeals are:

 Appeal from original decree;

 Appeal from order;
 Appeal from appellate decree/second appeal/to High Court;
 Appeal to the Supreme Court.

Forum of appeal
It is the amount/value of the subject-matter of the suit which determines the forum in which
the suit is to be filed, and the forum of appeal. The first appeal lies to the District Court if the
value of the subject matter of the suit is below Rs. 2,00,000; and to the High Court in all other
cases.

Presentation of appeal
Order 41 provides the requirements for a valid presentation of an appeal that has to be made
by way of a memorandum of appeal which lays down the grounds for inviting such judicial
examination of a decree of a lower court.

Summary dismissal
In Hanmant Rukhmanji v. Annaji Hanmant, it was held that when an appellate Court dismisses
an appeal under Section 151, a judgment has to be written summarising the cogent reasons for
such dismissal, along with a formal decree.
Doctrine of merger
Any decree passed by the appellate Court is a decree in the suit. As a general rule, the appellate
judgment stands in the place of the original judgment for all purposes, i.e. the decree of the
lower Court merges in the decree of the Superior Court. In-State of Madras v. Madurai Mills Co
Ltd., it was held that this doctrine is not a rigid one with universal application, but it depends on
the nature of the appellate order in each case and the scope of the statutory provisions
conferring such jurisdiction. 

Cross objections
According to Order 41, R.22(1) & 33, cross-objections can be made by the defendants. They’re
necessary only when some directions are issued against them that are to be challenged on the
basis of which part relief has been granted to the plaintiff even without such cross-objections.

Powers of Appellate Court

Section 107 prescribes the powers of an appellate Court:

 To remand a case;
 To frame issues & refer them for trial;
 Reappraisal of evidence when a finding of fact is challenged before it;
 To summon witnesses;
 Can reverse inference of lower Court, if not justified;
 Appreciation of evidence.

Duties of an appellate court

 The appellate Court has a duty to analyze the factual position in the background of
principles of law involved and then decide the appeal.
 To provide cogent reasons for setting aside a judgment of an inferior Court. 
 To delve into the question of limitation under Section 3(1) of the Limitation Act.
  To decide the appeal in compliance with the scope & powers conferred on it under
Section 96 r/w O.XLI, R.31 of the CPC.

Judgment
Section 2(9) states that a “judgment” refers to the statement given by the Judge on the grounds
of a decree/order.

Decree
Section 2(2) provides that a “decree” is a formal expression of an adjudication which
conclusively recognises the rights of the parties with any of the disputed matters in a suit, and
maybe preliminary/final. It includes the rejection of a plaint under Section 144 but does not
include adjudication that’d result in an appeal from order; or any order of dismissal for default.

Letters patent appeal

Section 100A expressly bars a Letters Patent Appeal from an order of a learned Single Judge of
the High Court, on/after 01/07/2002, in an appeal arising from an original/appellate decree.
The bar is absolute & applies to all such appellate orders.  

Appeal to SC
Article 133 of the Constitution of India & Section 109 of the CPC provides the conditions under
which an appeal could be filed in the Supreme Court:

 From a judgment, decree, or final order of the High Court;

 A case pertaining to a substantial question of law of general significance;
 The High Court opines it to be fit for the Supreme Court to deal with such a question.

Conclusion
Appeals are recognized as statutory rights of persons aggrieved by any decision of an inferior
court in the interest of justice. First appeals are a form of appeal prescribed under the Code of
Civil Procedure. The period of limitation in case of an appeal to the first appellate authority is
90 days where it lies to the High Court. Finally, it can be concluded that the provisions of the
CPC extensively deal with the substantive as well as procedural aspects relating to all kinds of
appeals, while making express modifications in order to be accommodative of the more specific
legislation.

Second Appeal under CPC

Introduction:

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.

Second Appeal:
The second appeal has been defined under Section 100 of 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 the appeal, be allowed to argue that the 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
the same has not been provided by the statue. The Supreme Court in Anant Mills Co. Ltd. v.
State of Gujarat 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”.

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:

(i) 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;

(ii) that the second appeal may be brought forth where the decree was passed ex parte;

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. 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.
In Mahindra & Mahindra Ltd. v. Union of India & Anr, 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.”

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

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. 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 Singh, 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.

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 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 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:

(i) a question of law is involved; and,

(ii) 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.

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 &
Ors laid down that the judgement rendered should suffer from additional infirmity of non-
application of mind.

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.

Appeal from Orders Under CPC

Table of Contents

 Introduction
 Meaning
 Difference between order and decree
o Decree
o Order
 Appealable orders
 Res Judicata
o Extent and its applicability
 o Conditions of Res Judicata
o Procedures, where res judicata isn’t appropriate, are: 
o Trial of relevance
 Forum of appeal
 Letters Patent Appeal
o Letter Patent Appeal in the High Court
o Letter Patent Appeal is not maintainable in the Arbitration Court
 Appeal to Supreme Court
o Rule 1 Order XLV
o Rule 2 Order XLV 
o Rule 3 Order XLV
o Rule 6 Order XLV
o Rule 7 Order XLV
o Rule 8 Order XLV
 Appeal by indigent persons
o Meaning
o Who may appeal?
o Inquiry
o Payment of court fees
 Conclusion
 References

Introduction
This article basically centres around appeal from an original decree made under Section 96 of
the Code of Civil Procedure and appeal from orders. The expression or the word ‘appeal’ has
not been characterized in the Code of Civil Procedure 1908. An appeal can be termed as an
appealing creature of the statute ,eas right to appeal is neither an inborn nor characteristic
right. The right to claim must be given by statute. Section 9 confers on offer to prosecutor,
freely of any rule, advance right to found intrigue suit of common nature in advance official
courtroom. So he has an appeal right to apply for execution of appeal order went in support of
him, however, he has no privilege to claim from appeal declaration or request made against
him, except if the privilege is plainly given by resolution. Section 96 of the Code gives appeal
right to disputant or litigant to offer from an original decree. Section 100 gives him appeal right
to offer from a re-judging declaration in specific cases. Section 109 gives him the right to speak
to the Supreme Court in specific cases. Section 104 gives him the right to appeal from orders as
recognized from orders.

Meaning
An appeal is a procedure by which a judgment/request of a subordinate court is tested under
the steady observance of its prevalent court. An appeal can be documented distinctly by an
individual who is a member or party to the case under the steady observance of the
subordinate court. Be that as it may, at the demise or death of such an individual, his lawful
beneficiaries and successors in appeal should file or keep up a previously documented appeal in
numerous issues. The individual documenting or proceeding with an appeal is known as the
appealing party or appellant and the concerned court is named as the appellate court or re-
appraising court.  Party involved with the particular case doesn’t have any inalienable right to
challenge the judgment/request of a court under the observance of its Superior Court. 

Offer can be documented just on the off chance that it is explicitly permitted by any law and
must be recorded in a predefined way in the predetermined Courts. The redressal of legitimate
complaints includes three-level of appeal, various levelled legal apparatus containing the
Supreme Court as the most elevated Court of the nation. The High Courts arranged in different
States and Union Territories establish the second level of this hierarchical request in the sliding
request. The Courts in a specific State or a Union Territory subordinate to their separate High
Courts, are the lowermost rung of the chain of importance or hierarchy. There are sure special
tribunals to settle upon certain particular issues, for example, annual assessment, extract,
organization law the bank recuperation cases, regulatory courts, customer courts, and so on.
Appeals from these councils or tribunals may lie in the High Court or the Supreme Court.

Difference between order and decree

Decree
The meaning of decree can be found in Section 2(2) of the Code of Civil Procedure, 1908. As
indicated by the content, a decree “the proper articulation of an adjudication which so far as
respects, the Court communicating it, decides the privileges and rights of the parties as to all or
any of the issues in discussion in the suit and might be either primary or last.” The decree is the
outcome (or the last piece) of a judgment. A primer decree can be subject to additional
proceeding before the suit is disposed of, while the last announcement which depends on the
fundamental one is communicated when every issue of the suit has been settled. All together
for a decree to be communicated, there must be a mediation – at the end of the day, all or any
pieces of the suit must be settled and the assurance of the rights of the parties should be
decisive (indisputable assurance). As such, when the judge has expressed his decision, the court
can’t utilize any way to change the decision taken. The declaration is just substantial in the
event that it is officially communicated following the procedure mentioned in the enactment.

Order
An order is a judgment communicated by the court (or the board), which doesn’t contain a
pronouncement of decree (the last judgment). As such, an order is a command by the judge to
one of the parties to the suit, educating the plaintiff party to take (or not take) explicit actions.
While the ‘decree’ is worried about generous issues, the ‘order’ centres around procedural
viewpoints (for example adjournment, revision, amendment and so on). Section 2(14) of the
1908 Code of Civil Procedure characterizes order as “the proper articulation of any decision of a
Civil Court which isn’t a decree.” An order might possibly, at last, or may not decide a right,
however, it is constantly final and can never be preliminary.
The distinction between the decree and order can be drawn simply on the accompanying
grounds: 

BASIS FOR
                    DECREE                     ORDER
COMPARISON

The lawful declaration of the

The proper announcement of
judgment taken by the court,
the mediation by the court
characterizing the
MEANING clarifying the rights of the
relationship of the parties, in
parties concerned judgment
the proceedings, is called an
the suit is called decree.
order.

On the other hand, an order

A decree is given in a suit
is given in a suit started by
PASS started by the introduction of
the introduction of the plaint,
a plaint.
application or appeal.

A decree is worried about the The order considers the

DEALS WITH substantive legitimate rights procedural privileges or rights
of the challenging parties. of the parties concerned.

A decree is characterized
An order is characterized
under Section 2 (2) of the
DEFINED IN under Section 2 (14) of the
Code of Civil Procedure Act,
Act.
1908.

ASCERTAINMENT In a decree, the rights of the In the order, it may or may

OF RIGHTS plaint and litigant are not state the rights of plaint
 unmistakably and clearly
and litigant.
found out.

There can be numerous There is just one decree in a

NUMBER
orders in a suit. suit.

A decree is generally
An order can be btoh
appealable, with the
TYPES appealable and non-
exception of when it is
appealable.
explicitly banned by law.

Appealable orders
Order 43, Rule 1: An appeal will lie from the accompanying requests under the arrangements of
Section 104, specifically:

 An Order under Rule 10 of Order VII is for restoring a plaint to be exhibited to the
correct court, with the exception of  the system which is determined in Rule 10-A of the
Order has been pursued. Which says that court can add any person as party at any point
of proceedings.
 An Order under Rule 9, Order IX dismissing an application (for a situation open to
appeal) for a request to put aside the expulsion of a suit.
 An Order under Rule 13 of Order IX dismissing an application (for a situation open to
appeal) for an order to put aside a decree passed out.
 An Order under Rule 21 of Order XI, if there should be an occurrence of rebelliousness
with an order for disclosure.
 An Order under Rule 34 of Order XXI is for an issue with the draft of the report of
support.
 An Order under Rule 72 or Rule 92 of Order XXI saving or declining to put aside a deal.
 An Order dismissing an application under sub-rule (1) of Rule 106 of Order XXI, gave that
a request on the first application, in other words, the application alluded to in sub-rule
(1) of that Order is appealable.
 An Order under Rule 9 of Order XXII declining to put aside the reduction or rejection of a
suit.
 An Order under Rule 10 of Order XXII giving or declining to give leave.
  An Order under Rule 2 of Order XXV dismissing an application (for a situation open to
offer) for a request to put aside the rejection of suit.
 An Order under Rule 5 or Rule 7 of Order XXXIII dismissing an application for
authorization to sue as a poor individual.
 Orders in interpleaded suits under Rule 3, Rule 4 or Rule 6 of Order XXXV.
 An Order under Rule 2, rule 3 or rule 9 of Order XXXVIII.
 An order under rule 1, rule 2, rule 2A, rule 4, or rule 10 of Order XXXIX;
 An order for refusal under rule 19 of Order XL1 to re-concede, or under rule 21 of Order
XLI to re-hear, an intrigue or appeal;
 An order under rule 23 or rule 23-A of Order XLI remanding a case, where an appeal
would lie from the pronouncement of the investigative court;
 An order under rule 4 of Order XLVII giving an application for the survey.

Res Judicata
Section 11 defines the rule of res judicata or the standard of indisputableness of the judgment,
with regards to the focuses of both realities, or of law, or of actualities and law, in each
consequent suit between similar parties. It orders that once an issue is finally decided by a
court, no party can be allowed to revive it in a resulting suit. The teaching of res judicata has
been clarified by Das Gupta J. in the case of Satyadhyan Ghosal v. Deorjin Debias, in the
following words : “The standard of res judicata depends on the need of giving an irrevocability
to legal choices. What it says is that once a res is judicata, it will not be decreed once more.
Essentially it applies as between past prosecution and future suit. At the point when an issue,
regardless of whether on an issue of actuality or an issue of law, hosts been settled on two
parties in a single suit or continuing and the choice is conclusive, either in light of the fact that
no appeal was taken to a higher Court or in light of the fact that the intrigue was expelled, or no
intrigue lies, neither one of the parties will be permitted in a future suit or continuing between
similar gatherings to campaign the issue once more.”

‘Res’ signifies ‘topic’ or ‘debate’ and ‘Judicata’ signifies ‘pronounced’, ‘chose’ or ‘mediated’.

‘Res Judicata’ along these lines signifies ‘an issue pronounced’ or ‘a contest decided’.The
teaching of res judicata is imagined in the bigger open appeal which necessitates that all the
case must, sooner than later, arrive at an end. The guideline is likewise established on equity,
value and great still, small voice which necessitates that a party who has once prevailed on an
issue ought not be bugged by a variety of procedures including the equivalent issue.

The regulation of res judicata depends on 3 maxims: 

1. nemo debet bis vexari pro una et eadem causa (no man ought to be vexed for a similar
reason); 
2. interest reipublicae ut sit finis litium (it is in light of a legitimate concern for the State
that there ought to be a conclusion to a prosecution); 
3. res judicata pro veritate occipitur (a legal choice must be acknowledged as right).
In this way, the principle of res judicata is the joined aftereffect of open approach reflected in
maxims (2) and (3) and private equity communicated in maxim (1); and they apply to all the
legal procedures whether common/civil or criminal. In any case, for this rule there would be no
closure to the case and no security for any individual, the privileges of people would be
engaged with unending perplexity and incredible shamefulness done under the front of the law.

In Duchess of Kingstone case, it was seen that judgment of a court of simultaneous ward,
straightforwardly upon the fact of the matter is, as a plea, a bar, or as proof definitive, between
similar gatherings, upon a similar issue, legitimately being referred to in another court and the
judgment of a court of selective locale, straightforwardly on the fact, is, in a way, indisputable
upon a similar issue, between similar gatherings, coming unexpectedly being referred to in
another court, for an alternate reason. The guideline of res judicata looks to advance honesty
and reasonable organization of equity and to oppose maltreatment of procedure of law.

In Daryao v. Province of U.P., the Court saw that the coupling character of decisions articulated
by Courts of capable locale is itself a basic piece of the standard of law, and the standard of law
clearly is the premise of the organization of equity on which the Constitution lays so a lot of
accentuation. The Court consequently held that the rule of res judicata applies likewise to an
appeal documented under Article 32 of the Constitution and if a request recorded by an
applicant in the High Court under Article 226 of the Constitution and is expelled on merits, such
choice would work as res judicata in order to bar a comparable request in the Supreme Court
under Article 32 of the Constitution.

Extent and its applicability

The regulation of res judicata is a major idea dependent upon open strategy and private
interest. It is appropriate to common suits, execution procedures, discretion procedures, tax
collection matters, modern mediation, writ petitions, regulatory requests, between time orders,
criminal procedures and so on.
                   Click here
Conditions of Res Judicata
To establish an issue as res judicata under Section 11, certain conditions should be satisfied,
which were set down in Sheodan Singh v. Daryao Kunwar: 

1. The matter straightforwardly and generously in issue in the consequent suit or issue
must be a similar issue which was legitimately and significantly in issue either really
(Explanation III) or constructively (Explanation IV) in the previous suit (Explanation I).
(Clarification VII is to be pursued with this condition).
2. The previous suit more likely has not been a suit between similar parties or between
parties under whom they or any of them guarantee. (Clarification VI is to be pursued
with this condition).
3. Such parties are more likely than not been disputing under a similar title in the previous
suit. 
4. The Court which chose the previous suit must be a Court capable to attempt the
resulting suit or the suit in which such issue is along these lines raised. (Clarifications II
and VIII are to be perused with this condition).
5. The issue legitimately and considerably in issue in the subsequent suit probably been
heard finally decided by the Court in the previous suit. (Clarification V is to be pursued
with this condition).

Procedures, where res judicata isn’t appropriate, are: 

 Tax assessment matters;

 Res Judicata is not material to instances of habeas corpus petitions;
 Removal of the suit in default;
 Removal in limine;
 Removal of Special Leave Petition in limine by a non-talking request;
  Bargain order, however party is blocked from testing it by the rule of estoppel;
 False declaration;
 Withdrawal of suit;
 If there should arise an occurrence of progress in conditions;
 Change in law consequent to a choice rendered by the Court.

Trial of relevance
In Jaswant Singh v. Custodian the Court held that so as to choose the inquiry whether a
consequent continuing is banished by res judicata, it is important to look at the inquiry
regarding:

 Forum or capability of the Court;

 Parties and their agents;
 Matters in issue;
 Matters which should have been made the ground for assault or safeguard in the
previous suit;
 Official choice.

Forum of appeal
Forum of appeal or the court which can hear appeal are mentioned in Section 106 of the Code
of Civil Procedure. Where an appeal from any Order is permitted it will lie in the Court to which
an appeal would lie from the announcement or decree in the suit in which such Order was
made, or where such an order is made by a Court (not being a High Court) in the activity of
investigative purview or jurisdiction, at that point to the High Court.

Letters Patent Appeal

Letter Patent Appeal (LPA) is an appeal by a solicitor against a choice of a solitary judge to
another seat of a similar court. It was a cure given when high courts were first made in quite a
while in 1865. This is a solitary cure which is accessible in court to the applicant against the
choice of a solitary judge of a high court. Generally, a cure would lie with just in the
incomparable court. Some of the time the choice of single judge would likewise turn out badly
because of wrong certainties just as by law. In this under the steady gaze of going to Supreme
Court, the solicitor has the choice to move to another seat who’s having more than one judge.
So applying for letter patent intrigue (LPA) applicant will spare the expense to moving in the
Supreme Court. Letter patent intrigue (LPA) is an intra-court claim in the high court and
between Supreme Court and both have various guidelines in regards to this LPA. Regularly a
judgment and request under Article 226 of the Constitution is appealable as LPA and judgment
and request under Article 227 isn’t appealable under this class.
Letter Patent Appeal in the High Court
Letter patent appeal can be documented in the high court and just in such high courts that have
been built up by the letter patent. Division seat can document a letter patent intrigue to
Supreme Court. It implies it will likewise incorporate full seat of 5 judges, 7 judges and
furthermore the Supreme Court. Letter patent appeal is the main court set up by a letter patent
in other court set up under the constitution and it is known as the subsequent appeal. Writs are
additionally settled by the Indian constitution and it very well may be raised if the contrary
party acknowledges a writ of habeas corpus. Writ locale lies just in the high court and Supreme
Court and there is no points of interest and drawbacks in the letter patent appeal.

Letter Patent Appeal is not maintainable in the Arbitration Court

The three judge’s seat of the Bombay high court holds that letter patent appeal isn’t viable from
a request gone under Section 8 of the code. Just Section 37 of the code demonstration applies
to such appeal. Arrangements and decisions rendered under the Arbitration Act of 1940 can be
depended upon while translating the arrangements of the Arbitration Act of 1996. The three-
judge bench of the Bombay high court in the case of Conros Steels Private Limited (“Conroe”) v.
Lu Qin (Hong Kong) Company Limited (“Lu Qin”) has settled the inquiry identified with the
appealability from a request under segment 8 of the mediation and placation act and Clause 15
of the letter patent. It has been seen that an application under Section 8 of the Act is an
application under part I of the Act and thus the bar under Section 37 of the Act would apply to
an intrigue from a request under Section 8 of the Act. It has been held that a Letters Patent
intrigue isn’t viable from a request under Section 8 of the Act.

Appeal to Supreme Court

Rule 1 Order XLV
“Decree” is characterized in a specific order, except if there is something repulsive in the
subject or setting, the articulation “order” will incorporate the last request.

Rule 2 Order XLV 

“Application to Court whose pronouncement grumbled of”:

1. whoever wants to advance the Supreme Court will apply by request to the Court whose
declaration is whined.
2. Every request under sub-rule (1) will be heard as speedily as could be allowed and try
will be made to finish up the transfer of the appeal inside sixty days from the date on
which the appeal is displayed to the Court under sub-rule (1).

Rule 3 Order XLV

 “Declaration as to esteem or wellness”:
 1. Every request will express the grounds of offer and appeal to Supreme Court for an
endorsement: that the case includes a considerable inquiry of law of general
significance, and that in the assessment of the Court the said inquiry should be chosen
by the Supreme Court.
2. Upon receipt of such request, the Court will guide notice to be served on the contrary
party to show cause why the said declaration ought not to be allowed.

Rule 6 Order XLV

“Impact of refusal of testament” where such testament is refused, the appeal will be expelled.

Rule 7 Order XLV

 “Security and store required on the award of testament”:

1. Where the testament is in truth, the candidate will, inside ninety days or such further
period, not exceeding sixty days, as the Court may upon cause demonstrated permit;
from the date of the announcement griped of, or inside about a month and a half from
the date of the award of the declaration whichever is the later date;

(a) outfit security in real money or in Government protections for the expenses of the
respondent, and

(b) store the sum required to settle the cost of interpreting, deciphering ordering printing, and
transmitting to the Supreme Court a right duplicate of the entire record of the suit, with the
exception.

1. Formal archives coordinated to be prohibited by any Rule of the Supreme Court until
further notice.
2. Papers which the gatherings consent to prohibit;
3. Records or bits of records, which the official engaged by the Court for that reason think
about superfluous, and which the gatherings have not explicitly requested to be
incorporated, and
4. Such other reports as the High Court may direct to be prohibited: Given that the court at
the hour of conceding the declaration may, in the wake of hearing any contrary
gathering who shows up, request on the ground of unique hardship that some other
type of security might be outfitted.

Rule 8 Order XLV

“Affirmation of advance and technique consequently” where such security has been outfitted
and store made as per the general inclination of the Court, it will:
 1. Proclaim the intrigue conceded;
2. Pull out thereof to the respondent;
3. Transmit to the Supreme Court under the seal of the Court, a right duplicate of the said
record, aside from as previously mentioned, and
4. Provide for either party at least one validated duplicates of any of the papers in the suit
on applying in this way and paying the sensible costs brought about in setting them up.

Appeal by indigent persons

Meaning
Order XXXIII identifies with be filled by the penniless people. A poor individual is characterized
in clarification one to Rule 1 as per which is an individual is a destitute individual on the off
chance that he doesn’t have adequate methods other than property excluded from the
connection in the execution of the degree, to empower him to pay recommended expenses. An
application is to be filled alongside the suit for consent to enable the candidate to document
the suit as a needy individual. After due request, the court anyway may dismiss the application
for consent to record the suit as a penniless individual on the ground-referenced in Rule 5. An
individual having been announced as the poverty-stricken individual can be vanished on the
ground-referenced in Rule 9. Under Rule 18 the state government can give free lawful support
to the poor individuals.

Who may appeal?

It was held that homeless person application ought to be filled by just normal individual and
into its ambit and degree legal individual additionally incorporate. This is a settled situation
in UOI v. Khaders International Construction Ltd. It is all around settled that the arrangements
of Order XXXIII Rule 1 have been sanctioned to empower poor people to look for equity by filing
suits or bids without court expense. Actually what is planned is the ability to raise assets by
standard and accessible methods and not using any and all means at all, unlawful or ill-advised.
On the off chance that during the pendency of the suit the candidate, who is a destitute
individual, kicked the bucket, it can’t be said that a short time later his lawful beneficiaries can
get the advantage.

Inquiry
Order 33 Rule 1-A states that in the principal case, an investigation into the methods for the
candidate ought to be made by the Chief Ministerial Officer of the court. The court may
embrace the report put together by such official or may itself make an enquiry. Order 33 Rule
4 expresses that where the application put together by the candidate is inappropriate structure
and is properly spoken to, the court may analyze the candidate with respect to the benefits of
the case and the property of the candidate. Order 33 Rule 6 expresses that the court will at that
point issue notice to the contrary party and to the Government pleader and fix a day for getting
proof as the candidate may cite in confirmation of his neediness or in disproof thereof by the
contrary party or by the Government Pleader. On the day fixed, the court will look at the
observers (assuming any), created by either party, hear their contentions and either permit or
reject the application.

Payment of court fees

Where an indigent individual prevails or succeeds in a suit, the state government can recoup
court expenses from the gathering according to the heading in the announcement and it will be
the main charge on the topic of the suit. Where an individual loses in the suit, the court charges
will be paid by him. Where the suit lessens by virtue of the demise of an offended party, such
court charges would be recouped from the bequest of the expired offended party.

Conclusion
The term appeal has not been characterized in the Code of Civil Procedure, 1908. It is an
application or request to bid higher Court for thought of the decision of bid lower court. It is
requested to continue the survey to be completed by offering more significant position or
authority of claim choice given by the lower one. In advance it is appeal creature of rule and
right to advance or appeal is neither an innate nor characteristic right. Individual distressed by
offer declaration isn’t qualified as or directly for appeal from order. The privilege to request
must be given by resolution. 

Section 9 presents on request prosecutor, freely of any resolution, appeal right to establish
claim suit of common nature in bid courtroom. So he has an offer right to apply for execution of
advance declaration went in support of him, however, he has no privilege to bid from claim
announcement or request made against him, except if the privilege is obviously given by
resolution. Section 96 of the Code gives appeal right to the prosecutor to request from a unique
announcement. Section 100 gives him advance/ appeal right to request from a redrafting order
in specific cases. Section 109 gives him the right to interest the Supreme Court in specific
cases. Section 104 gives him the right to offer from orders as recognized from orders. When
judgment is articulated against the party, right to claim emerges. Right to appeal doesn’t
emerge when reverse choice is given, yet on the day suit is filed for example procedures
initiated, right to advance get presented. Therefore, it tends to be said the Right to appeal is
appeal substantive right vested in parties from the date suit was filed.

Appeals to Supreme Court

Table of Contents

 Introduction
o Meaning
o Conditions for an appeal to the Supreme Court
 o Appellate jurisdiction of the Supreme Court is further divided into
o Criminal Matters
o Constitutional Matters
o Civil Matters
o Judgment, decree or final order
 Essentials of Judgement
 Content of Judgement 
o Decree
 Essentials of Decree
 Types of Decree
 Preliminary Decree
 Final Decree
 Partly Final And Partly Preliminary Decree
o The distinction between Decree and Judgement
o The distinction between Decree and Order
o The substantial question of law of general importance
o Need to be decided by SC
o Certificate of Fitness
o Special Leave Petition
 Procedure at hearing
o Application of leave and certificate of fitness
o Effect of amendment in the Constitution
o Security and deposit
o Admission of appeal
o Powers of court pending appeal
o Execution of orders of SC
 Appeals under constitution
 Conclusion
o References

Introduction
Supreme Court is the apex court in the country. Being at the top of the pedestal it enjoys varied
jurisdiction:

 Original jurisdiction- Acts as a guardian of the law.

 Appellate jurisdiction- Hear appeals from the lower court. It is also the final court for
appeals in the country.
 Writ jurisdiction- Issuing writs for the enforcement of Fundamental Rights.
 Advisory jurisdiction- Supreme Court has the power to give advice to the president on
the important questions of law.
Supreme Court is the highest court of appeal in India. Appeals from every court present in the
country ultimately go to the Supreme Court, if not settled at the lower courts. The appellate
jurisdiction of the Supreme Court is enshrined in Article 132 and 133 of the Indian
Constitution,1950  and Section 109 and 112 of the Civil Procedural Code, 1908.

Meaning
The appellate jurisdiction is one of the most important jurisdictions exercised by the courts in
the country. This jurisdiction enables a person to approach the higher court in case he is not
satisfied with the judgment given by the lower courts. In the appellate jurisdiction, the higher
court is asked to review and revise the judgement given by the lower courts. This also helps to
eradicate any misinterpretation of law or misconstruction of facts, in the proceedings of the
lower court.

Conditions for an appeal to the Supreme Court

Following are the conditions for appeal in the Supreme Court-

1. When the judgement, decree or order passed by the High Court.

2. When the issues in the case involve a substantial question of law.
3. When the High Court deems it fit that case must be dealt with by the Supreme Court
only.

Appellate jurisdiction of the Supreme Court is further divided into

 Civil Matters
 Criminal Matters
 Constitutional Matters
 Special Leave Petition

Criminal Matters
An appeal can be filed against any judgment, final order or sentence of a High Court in a
criminal proceeding in the following situations:

 The concerned High Court has reversed an appeal by an order of acquittal of an accused
person and sentenced him to death, imprisonment for life or imprisonment for a period
of not less than ten years.
 The High Court has withdrawn for trial before itself of any case from any of its
subordinate courts and in such case, the accused has been convicted and sentenced to
death or imprisonment for life or not less than 10 years. 
 The High Court certifies that the case is a fit one for an appeal to the Supreme Court.
  A person convicted on a trial held by the High Court in its extraordinary original criminal
jurisdiction is also appealable.
 However, no appeal can be filed by a convicted person if the sentence passed against
him by the HC does not exceed the term of 6 months or a fine not exceeding Rs. 1000 or
both.
 The criminal appeal can be filed if the High Court disregarded or misapplied the
established principles of criminal law.

No court fee is applicable in case of criminal appeal

Limitation Period

 If the certificate of fitness is granted by the High Court, then the appeal must be made
within 60 days of such grant of certificate, otherwise, the appeal should be filed within
60 days of the final order or judgement.
 Time spent on obtaining a copy of the judgment as order appealed from or the time
spent on obtaining the certificate and order granting the certificate are excluded.
 However, if sufficient cause is shown for the delay, then in such cases the delay could be
condoned.

Constitutional Matters
The High Court under Article 132(1) grants a certificate to the party, which permits it to file an
appeal in the Supreme Court if the High Court deems it fit that such case involves a substantial
question of law. The Supreme Court acts guardian of the constitution, hence all the matter
relating to important aspects of the constitution or if there is a need to interpret the
constitution, then the case should be referred to the Supreme Court.

Civil Matters
Article 133, deals with the appeals of the civil suit from the High Court. Certain conditions are
present for the same.

Judgment, decree or final order

Article 133(1), states that the appeal against any order, judgement or decree from any High
Court present in the Indian territory would lie to the Supreme Court if the High Court certifies it
under Article134(A). 

Judgement- Defined under Section 2(9) of the CPC, 1908. It is a statement that is made by the
judge based on decree and order passed.
In fact, in the case of Balraj Taneja vs Sunil Madan, the Court held that the judge can’t simply
say that the suit is dismissed or suit is decreed but has to give reasons for the same.
Judgements are very important because they form part of the future precedents, and also a
check on the judges that they do not use their discretionary powers blindly.

Essentials of Judgement

 A concise statement of the case.

 The points for determination.
 The decision thereon.
  The reasons for such a decision.

The decisions from the small cause courts would contain only the second and the third points.
Moreover sketchy orders which could not be used as future judgements. Conversely, an order
passed by the Central Administrative Tribunal is not “judgement”. The meaning of “judgement”
in the definition of the letter patent is wider than the actual definition of “judgement” and
cannot be said so in the current reference.

Content of Judgement 

 Judgments of the Court of Small Causes need not contain more than the second and
third points for determination and the decision.
 Judgments of other Courts shall contain a concise statement of the case, the points for
determination, the particular decision, and the reasons for such decision.

The judgement should be a self-sufficient document, in which the entire reasoning of the
judgement must be given. The judgement should describe the controversy that the court
sought to settle and the mode for doing so and the conclusion reached in this process.

Judgement cannot be altered once signed except to correct any clerical or arithmetical errors,
accidental slips or omissions or in case of review.

Order- It is defined under Section 2(14) of the CPC,1908. It means a formal expression by any
civil court which is not a decree. As a general rule, an order is founded on objective
considerations and as such the judicial order must contain a discussion of the question at issue
and the reasons used by the court which led to the passing of the order.

Decree
It is defined under Section 2(2) of the CPC, 1908. It is a formal expression of adjudication, which
according to the Court, describes the rights of the party concerned with respect to all or any of
the issues in the case, it could be preliminary or final or partly final and preliminary.
It shall, however, not include:                                                                            

1. a) Any adjudication from which an appeal lies as an appeal from a particular

order.                                
2. b) Any order of dismissal for default.

Essentials of Decree

 The formal expression of an adjudication.

 The adjudication must be with regard to a suit before the court.
 The concerned court shall determine the rights of the parties with regard to all or any
issue in the case.
 The adjudication in question should be conclusive.

Types of Decree
Preliminary Decree
When the rights and liabilities of the parties are declared by the Court, but the actual result is
to be decided in the further proceedings. In the case of Shankar vs Chandrakant, it was held
that further inquiries are conducted with respect to the preliminary decree, the rights of the
parties are fully determined and decree is passed in accordance with such determination which
is final. 

Final Decree

 The time has lapsed to file an appeal against a preliminary decree, or the case has been
decided by the highest court.
 When the concerned court feels that the case has been disposed of.

Partly Final And Partly Preliminary Decree

The issue of a decree being partly preliminary and partly final comes when the Court decides
two questions by the same decree. Thus, in one issue is resolved in toto but the other issue is
left to be resolved in the further proceedings.

The distinction between Decree and Judgement

 Judgement is a statement made by the judge on the basis of the decree. It is not
important to pass a statement in a decree but it is in the case of a judgement.
 Judgement is a contemplation of a stage prior to the decree. 
 It is desirable and not mandatory to pass an order in a judgement.
The distinction between Decree and Order

 A decree can only be passed in a suit which arose through a plaint. An order may
originate from a suit by plaint or may arise from a proceeding initiated by a petition or
application.
 Decree conclusively determine the rights of the parties according to the case at hand
and with respect to the concerned court. An order may or may not conclusively
determine the rights of the parties.
 A decree may be preliminary or final or partly so, but an order cannot be preliminary.

The substantial question of law of general importance

The High Court under Article 134A, issue a certificate of appeal to the Supreme Court if it finds
that there is a substantial question of law that is involved. The High Court can issue the
certificate for appeal under two conditions:

(i) It deems fit on its own accord.

(ii) If an oral application is made by the parties or on their behalf, immediately after the passing
or making of such judgment, decree, final order or sentence, determine, as soon as may be
after such passing or making, whether the certificate of the nature referred to in Article 132(1),
or Article 133(1) or, as the case may be, of Article 134(1)(c), may be given in respect of that
case.

Hence no interlocutory orders could be passed. Moreover, the test whether the order is final or
not will depend on whether the controversy in the case is resolved or not. Under this Article,
the party could plead in the Supreme Court, that the question of law decided by the lower
court, wrongly interpreted.

“Substantial question of law” is not defined in the CPC,1908, therefore it must be construed
from the facts of the case. One of the prime identification, of the substantial question of law, is
to test whether the question would benefit the general public. A decision in the cases involving
“substantial question of law”, acts as a precedent for the cases, regarding the same question
and affect the public at large, rather than the parties concerned.

Need to be decided by SC
Furthermore, the High Court should be of the strong opinion that the particular question of law
is of grave importance and hence should be decided by the Supreme Court only. Another
reason for this could be the lack of competency of the High Court to consider the issues
involved in the particular case.
Certificate of Fitness
Under Article 133, it is stated that the High Court grants a Certificate of Fitness to the party, so
as to make the other party competent to file an appeal in the Supreme Court. The certificate
could be granted on two conditions:

 The case involves a substantial question of law.

 The High Court thinks that the matter should be settled by the Supreme Court.

As per the 44th report of Law Commission of India, granting of the certificate of appeal to the
Supreme Court should not be taken lightly. The certificate should be granted only when the
High Court finds it extremely difficult to decide the matter itself or in exceptional
circumstances. It is important to note that exceptional circumstances do not mean the high
monetary value of the suit. Moreover, the High Court is in a better position to adjudicate
matters involving within the state, as it is well versed with situation prevalent there, hence
ordinary civil jurisdiction relating to the state matters must be dealt by the High Court itself.

Special Leave Petition

Special leave petition (SLP) means that an individual takes special permission to file an appeal
against any verdict of the lower court. Thus it is not an appeal but a petition filed for an appeal.
So after an SLP is filed, the Supreme Court may hear the matter and if it deems fit, it may grant
the ‘leave’ and convert that petition into an ‘appeal’. SLP shall then become an Appeal and the
Court will hear the matter and pass judgment. It must be noted that appeal in the Supreme
Court is a matter of privilege and not a matter of right. It is only on the Supreme Court, to
decide whether it will grant or not grant the right to appeal to a party. 

This leave is granted when the case involves a substantial question of law. Mere errors of fact,
misinterpretation of evidence or facts are not grounds of appeal before the Supreme Court. The
Supreme Court is only concerned if the law was correctly applied, whether the interpretation of
the law was in accordance with the settled principles of law etc.

The Supreme Court can hold, reject or modify the earlier judgement, it can also send the case
back to the lower court for fresh proceedings in accordance with the principles held by the
Supreme Court.

Procedure at hearing
Application of leave and certificate of fitness
An appeal could be made in the Supreme Court only if the High Court grants a certificate of
fitness to the party, which makes the party competent to file an appeal in the Supreme Court.
The Certificate could be granted under the following conditions:

1. The High Court thinks it fit to grant, on his own accord.

2. The aggrieved party or someone on their behalf, immediately after passing of the order,
decree or judgement, make an oral application demanding the grant of such certificate.
The court has discretionary power in this matter.

Effect of amendment in the Constitution

Article 134A was added by way of 44th amendment of the Constitution. Before this
amendment, there was no provision in the Constitution regarding the time and manner of filing
an application for the issue of a certificate by the High Court under articles 132, 133 and 134. 

Article 134A has to be read with articles 132, 133 and 134 as it seeks to streamline the High
Court’s grant of certificates for an appeal to the Supreme Court. Articles 134A states that every
High Court giving a “judgement, decree, final order or sentence” under its appellate jurisdiction
under Articles 132, 133 and 134 in civil, criminal or other cases involving “a substantial question
of law as to interpretation of the Constitution” “may”, on its own determine whether a
certificate of fitness for appeal to the Supreme Court is to be given. But, it “shall” do so “as
soon as may be” if an “oral application” is made by the aggrieved party “immediately after”
passing of the judgement, decree, final order or sentence. The determination, in either case,
has to be in accordance with the provisions of Articles 132(1), 133(1) and 134(1). Hence, to
grant a certificate under Article 134A, the court has to ensure that the conditions under Article
132, 133 and 134 are fulfilled.

Security and deposit

Under Order XLV Rule 7 of CPC, 1908, the provision of “security” is provided. Where the
certificate of appeal has been granted, the applicant has to, within ninety days, or if the
satisfactory cause is given, within a further period of 60 days, from the date of decree
complained of or within six weeks from the date when the certificate was granted, whichever is
later.

 Furnish security in cash or in Government securities for the costs of the respondent.
 Deposit the amount required to manage the expenses of translating,  printing, and
transmitting etc and to provide to the Supreme Court a correct copy of the whole record
of the suit, except-

(i) Formal documents directed to be excluded by any Rule of the Supreme Court in force at that
time.

(ii) Papers which the parties agreed to exclude.

(iii)Accounts, or portions of accounts, which the officer appointed by the Court for that purpose
considers unnecessary, and which the parties were not asked specifically.

(iv) any other documents as the High Court may direct to be excluded.

Provided that the Court at the time of granting the certificate may, after hearing any opposite
party who appears, order on the ground of special hardship that some other form of security
may be furnished. Moreover, no delay shall be permitted to an opposite party to contest the
nature of such security.

 The Court may also at any point of time during the proceeding revoke the security and
give further directions. (Order XLC Rule 9 of CPC,1908).
 The Supreme Court after the admission of appeal but before the transmission of a copy
of the record can ask for further securities if it appears inadequate. Time for furnishing
such security is to be fixed by the Court and other sufficient security would be made
(Order XLC Rule 10 of CPC, 1908).
 The Court can demand security in all cases in which the appellant is residing out of India,
and is not possessed of any sufficient immovable property in India other than the
property (if any) to which the appeal relates. 
 Where such security is not furnished within such time as the Court orders, the Court
shall reject the appeal.

Admission of appeal
Under Order XLV Rule 8, of CPC,1908, the procedure of the admission of the appeal in the
Supreme Court is delineated.

Where the security has been furnished and the deposit has been made with the satisfaction of
the Court, the Court shall:

(a) declare that the appeal has been admitted,

(b) give notice of such admission to the respondent,

(c) transmit to the Supreme Court, under the seal of the Court, a correct copy of the said
record, except as otherwise directed.

(d) give to either party one or more authenticated copies of any of the papers in the suit if
applies for the same and has paid reasonable expenses incurred in preparing them.
Powers of court pending appeal
The pending appeal is an order which temporarily suspends the Court proceedings or any effect
accruing from it. The motion of pending appeal is filed when the party wants to stop all the
proceedings of the case, from where the appeal was filed. However, it does not stop the other
party from enforcing the judgement of a lower court.

According to Order XLV Rule 13 of the CPC, 1908, the powers of the Court pending appeal are:

1. The decree that is appealed from the Court shall be executed unconditionally unless
directed otherwise, granting of a certificate of appeal is immaterial.
2. The court may grant power of pending appeal if interest is shown by the party
interested in the suit or any other special cause like-

1. Impound any movable property in dispute.

2. The Court may take the security from the respondents as it may deem fit would be
necessary for the performance of any order by the Supreme Court.
3. Stay the execution of the decree appealed from. The Court may ask for security from the
appellant, which would be necessary for the performance of the decree or order on
appeal.
4. Place the party under such conditions or give directions, considering the subject matter
of the appeal, by the appointment of a receiver.

It must be noted that Right of appeal is a vested right and accrues on the date on which first
proceedings (suit, application, objection etc.) take place. In the case of Videocon v. SEBI, it was
held that if the right of appeal is taken away or restricted, it does not affect the right of appeal
in respect of pending proceedings, unless expressly so expressed. However, this principle does
not apply to “revisions”. 

Execution of orders of SC
Under Order XLV Rule 16 of the CPC,1908, the orders made by any Court which executes the
decree, or order made by the Supreme Court, shall be appealable in the same manner and rules
as the orders of that court relating to the execution of its own decrees.

Appeals under constitution

Article 132 provides for an appeal to the Supreme Court of any judgement, order or decree
from civil or criminal cases or any other proceedings. But for that, the High Court has to certify
that the issues in the case involve a substantial question of law, that could only be dealt by the
Supreme Court or if there is a scope for the interpretation of the Constitution.
Article 133 provides for an appeal to the Supreme Court of any judgement, order or decree
from a civil proceeding of a High Court if it gives a certificate to the party that the case revolves
around an important question law that needs the opinion of the Supreme Court.

Article 133 provides for an appeal to the Supreme Court from any judgement, order or decree
from any proceeding of a High Court if:

 On appeal, it has reversed the decision of acquittal of a person and has given him a
death sentence.
 Withdrawn for trial before itself, any case from any Court subordinate to it and
convicted the accused given him a death sentence.
 High Court certifies that the case is fit to be decided by the Supreme Court.

Article 136 provides that the Supreme Court may according to its discretion give “leave” to a
case decided by any Court in the territory of India to become an “appeal”. The “Court” in this
case should not be the one constituted under any law relating to armed forces.

Conclusion
Supreme Court is the topmost forum in the hierarchy of the Court. It is primarily the Court of
appeal. It is the highest forum for appeal in the country. The power of appellate jurisdiction is
given to the Supreme Court, by the Indian Constitution under Article 132, 133, 134, 134A.

Under these Articles, various conditions are present which need to be satisfied for filing an
appeal in the Supreme Court. Filing an appeal in the Supreme Court is a matter of privilege and
not a matter of right, hence the fulfilment of these conditions is mandatory.

Moreover, under Article 136, the Supreme Court has the power to convert any judgement,
decree or order of any proceeding from any court in the country (except the court established
under the laws of the armed forces) to an appeal. For this, the Supreme Court hears the matter
and then decide upon whether to give a “leave” and make the case into an “appeal”. If it gets
the consent, then the case would be filed as an appeal in the Supreme Court.

Moreover, there are also statutory provisions available for filing an appeal, like through Section
109 Civil Procedure Code, 1908, Section 379 of the Code of Criminal Procedure,1973, Section
130E of the Customs Act, 1962, Section 23 of the Consumer Protection Act, 1986, Section 35L of
the Central Excise and Salt Act, 1944, Section 38 of the Advocates Act, 1961, etc.
A Brief Capsule on Reference under Civil Procedure Code,1908

Table of Contents

 Introduction
 Nature and scope of the topic
o Conditions
o Who may apply?
o Power and duty of referring court
o Power and duty of the High Court

 Article 228 and Section 113 
 Procedure at hearing
 Costs
 Revision
 Distinction
o Reference and Appeal
o Reference and Review
o Reference and Revision
o Reference under CPC and CrPC
 Conclusion
 References

Introduction
Plenty of cases are heard by the judges in the courts every day and they have to decide each
case in accordance with the law. Hence, there is a possibility that they might commit certain
mistakes. The provision of reference and revision in the Civil Procedure Code, 1908 are
contained in order to rectify the mistake or error committed in a case. Part VIII of the CPC deals
with the provisions of reference and revision. Section 113 and Order XLVI deals with reference
and Section 115 deals with revision. 
The main objective of reference is that the subordinate court is enabled to get the opinion of
the High Court about a case. A party in case of an appeal has to approach the higher court
against the decree or order of the court but when there is some procedural, technical or
jurisdictional error there is no need of approaching the higher court by way of appeal but it can
be done by way of reference or revision.  

 
Nature and scope of the topic
A court subordinate to the High Court is empowered to refer the case under Section 113. The
court in relation to Section 113 means a court having Original Civil Jurisdiction. A reference can
be made only when there is a question of law or validity of any Act or Ordinance or of any
provision of the Act is involved and can be sought only in a pending suit, appeal, or other
proceedings. Section 115 deals with revision. It empowers the High Court to call for the record
of any case decided by a court subordinate to it. 

Conditions
Where any matter involving a substantial question of law is referred by the subordinate court to
the High Court for its opinion upon that matter it is known as a reference. According to Section
113, any court can refer the case to the High Court for its opinion and the High Court may then
make an order as it deems fit subject to certain conditions and limitations.

Rule 1 Order XLVI for the purpose of reference provides certain conditions and limitations that
are needed to be satisfied for the High Court to entertain the reference from the subordinate
court. These conditions are given below :

 There should be a pending suit or appeal where the decree is not subject to appeal.
 There must be a question of law or usage having the force of law.
 The Court that is trying the suit or appeal or executing the decree must entertain
reasonable doubt on that question of law.

As per proviso to Section 113, the question of law involves questions relating to the
validity/provisions of any Act, Ordinance, or Regulation or other questions.

Who may apply?

A subordinate court may refer the case with its own opinion on the point to High Court

 either on its own motion or; 

 on the application of any of the parties.
In Manager Metro Railway vs M/S. B.C.L. Secure Premises it was ruled that Section 113 is not a
provision that enables the High Court to take reference suo moto or to order a reference. It is a
provision that enables the subordinate court to refer the case to the High Court. 

Power and duty of referring court

To entertain the doubt on the question of law. In Banarsi Yadav vs Krishna Chandra Dass, it was
held that a subordinate court may refer a case to the High Court when there is reasonable
doubt regarding the constitutional validity of an Act.

In  A Sreenivasa Rao and Ors v. Govt of Andra Pradesh, it was held that the subordinate court is
not empowered and entitled to decide the validity of any Act, Ordinance or Regulation and
Section 113 makes it mandatory for the subordinate court to refer the pending case to the High
Court for determining the question relating to the validity of an Act, Ordinance or Regulation
which is necessary for the case to be disposed of by stating its reasons and opinions for
referring the case to the High Court for its opinion.

Power and duty of the High Court

 To make any order as it thinks fit to when the case is referred to it by the subordinate
court.
 Answer or refuse to answer the question in a case and send the case back to the
referring court for disposing it. 
 To quash the case referred to it.

Article 228 and Section 113 

In Ranadeb Choudhuri vs Land Acquisition Judge, the court observed, Section 113 of the Civil
Procedure Code is a statutory provision whereas Article 228 is a constitutional provision.
Section 113 does not relate to the interpretation of the constitutional provisions but to the
question of the validity of an Act. Both Section 113 and Article 228 may relate to a common
case but are not coextensive.

It was held in Rama Sundari Devi v. Indu Bhusan Bose that under Section 113 the court, subject
to certain conditions, may state and refer the case to the High Court for its opinion and the
proviso to this section specifically mentions the case relating to the validity of an Act. Whereas
under Article 228, if the High Court is satisfied that a case is pending in a subordinate court that
involves the determination of the substantial question of law for the interpretation of the
Constitution. The High Court shall withdraw the case and either dispose of the case itself or
determine the question of law and return the case to the court from which the case has been
withdrawn. 
Procedure at hearing
The following procedure has to be followed at the time of hearing:  

 As per Rule 1, the court trying the suit or appeal or executing the decree either on its
own or on an application of the parties will draw up the statement of facts and point of
doubt of the case and pass a decree or order contingent upon the high court on the
points referred.
 After hearing the parties the High Court will decide the points so referred. A copy of the
judgment along with the signature of the registrar will be transmitted to the referring
court as per Rule 3.
 The referring court on receiving the copy will proceed in confirmation with the High
Court’s decision to dispose of the case. 
 The High Court has been vested with the power under Rule 5 to make such orders and
to amend, alter, cancel, set aside any decree or order the referring court has passed or
made.
 As per Rule 7, In case the question arises as to the jurisdiction of small causes court, a
record with the statements of the reasons for doubt will be submitted to the High
Court. 

Costs
Rule 4 of Order XLVI talks about the costs of reference to the High Court. It says that if any cost
is consequent upon a reference for the decision of the High Court, it shall be deemed to be the
costs in the case.

Revision
Section 115 refers to the revisional jurisdiction of the High Court. Revision in general terms
means looking over and over again in order to correct the mistake. According to Section 115,
the High Court can call for the record of any case decided by a subordinate court and the High
Court may make such order as it deems fit and in which no appeal lies under certain conditions.

If the subordinate court:

 Not having jurisdiction has exceeded the jurisdiction over that case.
 Having jurisdiction has failed to exercise the same. 
 Having jurisdiction has acted illegally or with material irregularity. For instance, some
error of procedure is committed that is material in the course of a trial which may
eventually affect the decision of the Court. 

The proviso to this section specifically mentions that the High Court for the purpose of this
section shall not vary/reverse any decree/order against an appeal that lies either in High Court
or any subordinate Court. Further, a revision will not be considered as a stay of the suit
excluding such suit or proceeding which has been stayed by the High Court.

The Supreme Court in the case of Salem Advocates Bar Assn v. Union of India considered the
scope of Section 115 of CPC and observed that the scope of section 115 is limited and the
revisional court should only be satisfied that the orders passed are within the jurisdiction of
Section 115. 

In Radhe Shyam v. Chhabi Nath, the Apex Court held that even if the scope of section 115 has
been curtailed by the CPC (Amendment) Act, 1999 that does not result in expanding the power
of superintendence of the High Court.

Distinction
The basic difference between reference, appeal, review, revision and reference under CPC and
CrPC can be studied as follows:

Reference and Appeal

Sr.
Reference  Appeal 
No.

The court is vested with the The parties to the suit have the right to
1
power of reference. appeal.

For reference, there should be

An appeal is preferred only after the
2 a pending suit, appeal, or
judgment is passed. 
execution of a decree

Under reference, there must An appeal can be preferred under any

3 arise a substantial question of grounds. For instance, to rectify the error
law. committed by the lower court. 
 Reference is made to the High An appeal can be made from a
4
Court. subordinate court to a higher court.

Reference and Review

Sr.
Reference Review
No.

Under Reference, the subordinate An application for a review is made

1 court refers the case to the High by any person aggrieved by a decree
Court for its opinion. or order of a Court.

A reference is made when there is a An application for review is made

2
pending suit or appeal. after the decree or order is passed.

The High Court has the power of The court that passed the decree or
3
reference. order can review the judgment. 

Reference and Revision

Sr.
Reference Revision
No. 

Under revision, The High Court itself can

The subordinate court refers call for any record of the case decided by
1
the case to the High Court. a subordinate court or on an application
of the party applying for revision.
 Reference involves any A revision is done by the High Court if
reasonable doubt on a there is an error of jurisdiction or if there
2
substantial question of law or is any material irregularity on the part of
usage having the force of law a subordinate court. 

Reference under CPC and CrPC

Sr.
CPC CrPC
No.

Section 113 and Order XLVI of CPC deals Section 395 of CrPC deals with
1
with reference.  reference

Reference under CrPC involves

2 A case is initiated before a civil court. a case tried before a trial
court.

A subordinate court either on its own Reference can be made by the

3 motion or on the application of parties court suo moto or upon the
may state and refer the case to High Court motion of a stranger.

The court can either commit

The Court can either stay the proceedings
4 the accused in jail or release
or proceed with the case.
him on bail.

Conclusion
Whenever the judge passes a decree or makes an order there might be certain circumstances
where errors or mistakes relating to the jurisdiction or procedure are committed by the court.
Hence, the provisions relating to reference and revision ensures that the working of the courts
is carried out in an efficient manner. Also, the provisions of appeal are different from the
provisions of reference and revision. An appeal is sought where the party is aggrieved by the
decision of the court and reference or review is sought in a case where there is some
procedural or jurisdictional error.

Review,
Table of Contents

 Introduction
 Review: Meaning of the term in the legal world
o Nature, scope and objectives
o Cases where review lies
 What are the grounds of review cases?
 Who can file for a review?
 Court of plenary jurisdiction
 Suo motto review
 Appeal
 Letters Patent Appeal (LPA)
 Revision
 Distinction between Review and Appeal
 Distinction between Review and Revision
 Conclusion

Introduction
It is human nature to make mistakes. Judges are also humans. So they’re no exception to this
kind of behavior. A judge can make an error in the course of his duties as well. There is yet to be
born a man who has not made a mistake.

For centuries now, the provisions of appeal review and revision have been a part of the law.
These provisions are some important steps in the attempt to remove or reduce the errors by
the judges.

Because one of the reasons behind law’s birth was to preserve the rights of the public. And so
the existence of law becomes worthless when the judgment of any lawsuit goes wrong. People
in situations where they are wronged, try to get the shelter of law. But when law fails to
provide a person with the shelter, the person becomes helpless and loses his trust in law. It is,
therefore, a common principle that the law should not be mistaken. But it’s very difficult not to
make mistakes. For this reason, the provisions of appeal review and revision were born.

Review: Meaning of the term in the legal world

Review means when the court re-examines the decisions made by itself, the examination of any
legislation made by the government or any act of the administrative organizations; it rectifies
the error in an act, judgment, or legislation. According to many leading legal philosophers and
luminaries, the main purpose of this law is to protect the rights of the people as the judgments
made by the courts, not mostly, but at times are fallible. In the process of review, the court
might either overturn the decision or make necessary changes in it. The constitution of India
has provided us with enough provisions of review to make the principles of justice more
efficient.

Article 32 allows the Supreme Court to issue directions or writs and gives the right to an
individual to knock on the door of the court if his fundamental right has been infringed or
violated. The Parliament can also entrust any other court with the jurisdiction to exercise the
power of the Supreme Court. It allows the individual to avoid the extensive or lengthy legal
procedure and directly file a case in the Supreme Court if his fundamental right has been
violated. So, if there is any law or act of the government that encroaches upon the fundamental
right of an individual, his rights will be enforced under this article. The law or the act will be
reviewed by the court which makes it the most important article in the process of legal review.
According to the Rules of the Supreme Court, such a request must be submitted within 30 days
from the date of judgment or order.

Article 136 of the Indian Constitution, on the similar lines, gives the Supreme Court the
discretionary powers to grant special leave to appeal from any judgment, order, decree,
sentence or determination, in any cause, which has been passed by any court or tribunal. The
Supreme Court thus enjoys being appellate in most of the cases. The Supreme Court often deals
with cases that involve the ‘question of law’, where it thinks that the verdict given by the other
court is not satisfactory. The discretionary power of the Supreme Court is subject to judicial
review.

Article 226 of the Indian Constitution, on the lines of Article 32, vests powers like issuing writs
and giving directions in the High Court. According to this article, a person whose fundamental
rights have been violated can approach the High Court. The High Court can issue a direction to
any government, person or organization. The High Court acts as a protector of the fundamental
right and gives the ground for judicial review.

Article 227 of the Indian Constitution, gives the power of supremacy to the High Courts of India
over other courts or tribunals within its jurisdiction (i.e. the courts that lie in its territory). The
High Court can issue directions to the subordinate courts under this article and the courts are
bound by it. The High Court enjoys the power of revision under articles 226 and 227 of the
Constitution of India.

Review is one of the most important parts to ensure justice and this principle is almost present
in every democratic country. Review enables an individual to ensure that his right is not
violated by any act, any law made by the government or by an error of any court. Review truly
holds together the concept of complete justice and separation of power and this function acts
as the backbone of the democracy. If there had not been a system of review in the judicial
process, then the law made by the government would not be subject to the examination or
review by the court and the entire judicial process would become futile. The principle of judicial
review ensures the principle of complete justice. The Supreme Court and the High Court have
used this principle while delivering landmark verdicts like in the case of Vishaka v. State of
Rajasthan, where the Supreme Court laid down the famous Vishaka guidelines.

Under the review petition, the binding judgments of the Supreme Court/High Court can be
reviewed. Generally, in view of stare decisis (the legal principle of determining points in
litigation according to precedent), courts do not disturb a ruling without a solid case. This
review provision is thus an exemption from the legal stare decisis principle. Article 137 of the
Constitution provides for the authority of the Supreme Court of India to revise any judgment it
pronounced (or orders made) pursuant to Article 145 of the Constitution.

The concept of review is one of the important aspects in maintaining human rights, as the
fundamental rights like the right to life, right to speech and expression and right to practice any
religion are enforceable because of the process of judicial review. The contravention of these
rights by the government or by any other legal person can be challenged in the court only by
the process of judicial review. So, this makes it an indivisible part of the judicial process.

The concept also helps in maintaining the limits of the organization of a state, like courts or
government organizations, and checking that there is no outreach of power by the
organizations.

The constitution of India has classified the judicial review under three categories, that are:

 Judicial review of constitutional amendments– The Supreme Court can check the
constitutional amendment in order to see that it doesn’t violate any fundamental right
or the basic structure of the constitution. The leading case, in this category,
is Kesavananda Bharati v. Union of India.
 Judicial review of legislation of Parliament, State Legislatures as well as subordinate
legislation– The court can review the legislation in order to examine that the laws made
 don’t violate the fundamental rights and it is mainly done to check the limitations of the
legislatures.
 Judicial review of administrative action of the Union of India, as well as the State
Governments and authorities falling within the meaning of State- The administrative
functions of the governments of both the Union and the states, can be brought under
check by the process of judicial review. 

Presidential pardon in terms of judicial review is also an important function of the Indian
judicial system. The president can commute the capital punishment given to a person by the
court on the grounds of morality and mercy. This process involves the President’s review, which
is entirely in his hands. In the case of Kehar Singh v. Union of India, the Supreme Court held that
the order of the president in the cases of mercy petition cannot be a subject of judicial review. 

Nature, scope and objectives

Judicial review enables a person to enforce his right that might have been overlooked by the
administrative organs or the courts. In the process of judicial review, the court will not look into
the merits, but into the law of the act. If it finds contravention to any dominant law at the time
of review then it would set the decision aside.

The court can set aside any legislation made by the parliament or any act done by the
government or any order passed by the inferior court if they find it to be unconstitutional or
violative of the natural justice principle. The Supreme Court and the High Court can also issue
writs, if the situation demands so, as a part of the process of safeguarding the fundamental
rights.

The objective behind this procedure is to make review a tool to ensure complete justice and to
enforce the fundamental rights of an individual. The purpose is to have a check over the
working of the legislature, in order to check the constitutionality or legality of the laws made by
them. The act ensures that the laws made by the legislature passed the litmus test of the
constitution. Another objective behind this law is to rectify the legal errors made while
delivering the verdicts.
           Click Above
Cases where review lies
Non-appealable cases– Non-appealable cases are cases where no right is given to the suffered
party or when an appeal is rejected on the grounds of incompetence or being time-barred. The
party who has suffered can hence file for review.

Where appeal lies but is not preferred- In cases where the benefit of an appeal lies but is not
preferred by the party, the party can file for a review but the review must not be against the
order because that would be going into the facts which are not entertained by the courts.
When the party has already filed for an appeal before the court which is pending, in such cases
the petition for review will not be entertained by the court. However, if the review petition is
filed first and the appeal is filed subsequently then the court’s jurisdiction to review can’t be
questioned under law.

What are the grounds of review cases?

 Discovery of new evidence– When of new evidence or matter which is substantial to

the case and was not in the cognizance of the concerned person, then that person can
successfully apply for review. However, the burden of proof lies on the concerned
person to prove that at the time of the verdict he was completely unaware of the fact or
evidence that could have an influence in the decision making. However, the mere fact
that the concerned party was not cognizant of the ruling in any other case which might
have impacted the decision wouldn’t be considered by the court for review.
 Error on the face of record– The prima facie error that looks pretty conspicuous without
a legal analysis of the judgment can only be taken into account for review under this
ground. The error or mistake could either be a mistake in law or a mistake in fact.
 Other sufficient reason– This ground of review has given a very wide coverage of the
reviewing process. In the landmark case of Chajju Ram v. Neki it was held that the
sufficient reason shall be connected with the other two reasons in the least possible
way. The mere fact that the court ignored an important fact will not make a valid point
under this ground.

Who can file for a review?

 Review can be filed by any person who feels himself to be deprived of rights or
aggravated under the law or the rule of law under Rule 1 order 47 of the CPC.
 Or; in non-appealable cases, where no right is given to the suffered party when an
appeal is rejected on the grounds of incompetence or it being time-barred, then the
party who has suffered can file for review.
 Or; in cases where the benefit of an appeal lies but is not preferred by the party, the
party can file for a review but the review must not be against the order because that
would go into the merits which are not entertained by the courts. When the party has
 already filed for an appeal before the court which is pending, in such cases the petition
for review will not be entertained by the court. However, if the review petition is filed
first and the appeal is filed subsequently then the court’s jurisdiction to review can’t be
questioned under law. 

Court of plenary jurisdiction

Under Article 136 of the Indian Constitution, the Supreme Court of India has the special power
to grant special leave from any judgment, order or sentence made by any court or tribunal in
the territory of India except to those belonging to the Armed Force Courts or tribunals. All
adjudicating bodies that have been formed by the state can be counted as tribunals except the
Armed Force Tribunal. Article 136 has a very wide scope as it vests the power of plenary
jurisdiction in the Supreme Court by granting it the power to hear any appeal against any kind
of judgment and pass an order related to the appeal if needed, so as to preserve the principle
of justice. Thus plenary power truly stands upon the ideals of democracy as it makes sure that
justice will always be served at last, and removes the concept of injustice by an error of law.
The concept laid down by the constitution-makers was to prevent the miscarriage of justice. 

Suo motto review

In law, sua sponte or suo motu (on its own motion) describes the act of authority, to take up
the matter without the request of the other party. This term is generally used for measures
taken by a judge on his own, without a prior motion or application from the parties.

It is a well-known fact that even if time restrictions are imposed on the application, the Court
has the power of suo moto to rectify its own mistakes. Where inherent powers are exercised,
the issue of limitation does not preclude a solution. The decision making authorities can be
vested with suo motu powers of review in the interest of justice. If there are strong reasons
present for a judgment to be reviewed, then there is no excuse why the court should be
restrained from exercising the power of review. 

Appeal
An appeal is asking a higher court to review and if needed, to reverse the decision of the lower
court and to turn it in the losing party’s favor after the final judgment has been given. The
losing party has to quote legal reasons as to why it feels the judgment of the lower court was
wrong and why it should be overturned by the higher court. The losing party and the appellant
here must show the errors or mistakes that were committed during the previous trial. The two
grounds on which an appeal can be filed are:

 When a mistake was committed in the trial– Only grave errors are counted under this
provision. Harmless errors cannot be a ground for appeal. The appellant must also show
that the error caused his rights to be infringed.
  When evidence does not support the verdict– It is much harder to prove an appeal that
is based on insufficient evidence. As the Court of Appeal did not hear the entire
proceedings in the previous trial and didn’t make a fully unbiased decision. Based on
their belief in the judgement of the trial court, most appeal courts weigh and then make
their decision.

In civil suits, both the plaintiff and the defendant can file a suit for appeal. A defendant has the
right to file an appeal unless the judgment came from the court of the highest order. Not every
appeal is entitled to be entertained by the court as there can be an appellable error and thus on
those grounds the appeal can be rejected. 

It must be kept in mind by the party when it decides to file an appeal that the appeal must be
made in the limited time frame which varies depending upon the jurisdiction. However, the
decision of the appellate court is not time-bound. The judges of the court of appeal take time to
consider the issues and then make the final decision. This process can take weeks or even
months.

Letters Patent Appeal (LPA)

Letters Patent Appeal is an appeal from a single bench to a larger bench of the same court. Such
kind of appeal is dealt with, under Section 50(1) (b) of the Arbitration and Conciliation Act,
1996 and has to be judged within already laid down parameters. This remedy was first provided
after the establishment of High Courts in 1865. The decision given by the single judge bench can
go wrong due to wrong facts or can even be wrong according to the law. In these cases, the
appellant has the option to refer to a larger bench of the same court before going to the
Supreme Court. Thus, this would save the expenses of going and filing a case under the
Supreme Court. Such kind of an appeal is called an intra-court appeal when it is filed in the High
Court and an inter-court appeal when it is filed under the Supreme Court. The maximum period
for filing an inter court appeal is 30 days and filing an intra-court appeal is 90 days.

After paying the court fees the appellant who files for an LPA is required to carry the following
documents with him to the proceeding:

1.  Certified copy of judgment and decree appealed from.

2.  Certified copy of certificate granted by the High Court. 
3.  Certified copy of the order granting the said certificate.

However, it must also be noted that intra-court appeal is not maintainable in cases of criminal
nature. 

Revision
Revision is a new prospect for the resolution of law. It means re-examining the case involving
improper inference, non-exercise or inappropriate jurisdictional exercise. Where no appeal lies
for a case, which is decided by the subordinate court, Section 115 of the Code of Civil
Procedure gives the High Court the power to revise the matter. This jurisdiction is known as the
High Court’s revisional jurisdiction. Revision refers to reviewing or scrutinizing with a view to
correct or to improve.

In the exercise of revisional powers, it is not the responsibility of the High Court to take into
consideration the benefits of the evidence; it merely has to see if the provisions of the law have
been properly adhered to by the court whose order is the subject of the revision.

In Section 115 of the CPC, there are only three grounds for revision, which are: 

 When the lower court meditates on a matter on which it has no jurisdiction.

 There was authority, but it was not exercised.
 Jurisdiction has been applied illegally or irregularly.

Section 115 shall thus prevent subordinate courts or lower courts from acting arbitrarily,
illegally, irregularly or capriciously.

Distinction between Review and Appeal

 When appealing to a court superior to the one that issued the verdict, the appellant will
contest the inferior court’s decision with an appeal. The appeal is a motion to be tried
again. An appeal to ask the higher court to amend the lower court’s decision is sought.
The lower court’s decision may remain the same or it may be revised by the higher
court. A review is not people’s statutory right and is applicable at the court’s discretion.
A review is applied in the same court in which the original decision is taken and is a
request to consider the legality of the ruling. A review is based on irregularity of
procedures, impropriety, irrationality, and illicitness.
 Section 114 and Order 47 of the CPC deal with review whereas Sections 96 to 112 and
Orders 41 to 45 of the CPC deal with appeal.
 There’s just one review. The second request for review does not lie. On the other hand,
there are three appeals:
o From District Munsiff Magistrate Court/Subordinate Judge’s Court to District
Judges (First Appeal); 
o From District Judge’s Court to the High Court(Second Appeal);
o From the High Court to the Supreme Court (Third Appeal).
 An appeal is referred to different judges whereas a review is referred to the same judge.
 The grounds for appeal are wider in ambit than the ground for review.
Distinction between Review and Revision

1. Review is contained in Section 114 and Order 47 of the CPC whereas revision is

contained in Section 115 of the CPC.
2. Review is given by the court which passed the decree or made the order whereas
revision is executed only by the High Court.
3. Review can be done only after the passing of the order whereas revision can be done
when the case has been decided.
4. The decree granting a review is appellable whereas the decree granting a revision is not
appellable.
5. The grounds for review are the discovery of new evidence, error on the face of the
record and any other sufficient reason however the ground for revision is a jurisdictional
error by the lower courts.

Conclusion
The maintenance of justice which is important for every society in a democracy is possible due
to the presence of the Constitution. The principles of democracy have been preserved by the
provisions of review. 

 The provisions have been used by the appellate courts while delivering verdicts. The
main principle behind review is to protect the sanctity of complete justice and protect
the rights of the individual through the legal process that is dominion over the republic
of India. Review not only protects the right but also the dignity of the individual and
makes sure that there is no miscarriage of justice. 
 Justice vs judiciary is a topic that has been a century-long debate but the review system
acts as an invisible bridge and ensures harmony between both by the due procedure of
law. The provision removes the possibility of human error while delivering verdicts and
ensures that the rights of every individual are protected in the eyes of law. 
 The concept of review gives the power to a person to enforce his rights to establish
justice against injustice. The review system is also very essential for checking and
balancing the overreaching acts that the government might perform in the course of
administration. If the legislature makes any law or the government performs any act
that contravenes the right of any person in India and that contravention per se is not
allowed by law, then review acts as a tool to salvation for that person, and any such act
or law passed will be set aside by the appellate court. 
 The review system sets the tone for the proper functioning of the pillars of democracy
by determining the limits of every governmental and judicial organ and is essential for
effective coordination. The suo moto cognizance is one of the most influential tools to
enhance the judicial review and the justice process. It gives the right to the supreme
court to take cognizance of the injustice that’s happening in any part of the country and
enforce justice by law and order. It thus provides a solution to the very famous lines
“injustice anywhere is a threat to justice everywhere”.
Revision on the other hand clothes the High Court with the powers to ensure that the
subordinate courts ‘ proceedings are conducted within the boundaries of their jurisdiction and
in the furtherance of justice in accordance with the law. It allows the High Court to rectify,
errors of jurisdiction committed by subordinate courts and provides the means to obtain
rectification of a non-appealable order to an aggrieved party. In other words, revisional
jurisdiction is conferred on the High Court for the effective exercise of its supervisory and
visitorial powers. 

Appeal whereas ensures the litigants that they will be granted justice under the law while the
resolution of a particular dispute and appeal also helps in enacting the rules of decision that will
be binding on all lower courts within the judicial system, thus ensuring uniform treatment and
some measure of certainty and guidance for those whose actions bring them within the scope
of the rule.

Revision under Code of Civil Procedure, 1908

Table of Contents

 Introduction
 Meaning
 Nature, Scope and Object
 Who may file?
 Conditions for Revision
o Precedents
o No appeal lies
o Jurisdictional error
o Subordinate court
 Alternative remedy
 Limitations on revisional jurisdiction
 Suo moto exercise of power
 Interlocutory Orders
 Death of Applicant
 Doctrine of Merger
 Procedure of Revision
 Recording of Reasons
 Letters Patent Appeal
 Distinctions
o Revision and Appeal
o Revision and Second Appeal
o Revision and Reference
 o Revision and Review
o Revision and Writ
o Revision and Power of Superintendence
 Conversion of Revision into Appeal
 Law commission’s view on Revision
 Conclusion
 References

Introduction
The judgements given by any court can be a result of inadvertent mistakes or human errors
which can slip into the proceedings despite due diligence. The law provides for an application to
challenge the decision of a subordinate court if the court exceeds its judicial authority or
refuses to exercise the powers under its jurisdiction vested by law. Or may decide to revise a
case on its own accord if it is felt that a subordinate court has not acted under its jurisdiction.
After revision, the court may revise its decision and implement changes. This provision is put in
place to maintain fairness and guarantee the accuracy of justice. The Code of Civil Procedure,
1908 is a procedural law related to the administration of civil proceedings in India. It defines the
circumstances under which civil cases can be revised by the High Court and lays down the
procedure for revision. Revision of a case is different from the review, which is the re-analysing
of a case; and appeal, which is the application challenging the judgement of a court.

Meaning
Revision means to go through something carefully, thoroughly and diligently. Cases can be
revised by the High Court as it possesses revisional jurisdiction as defined under Section 115 of
the Code of Civil Procedure. The High Court has the right to revise cases decided by subordinate
courts to ensure delivery of justice and maintenance of fairness.

Nature, Scope and Object

The primary objective of a revisional authority of the High Court empowered by Section 115 is
to ensure that no subordinate court acts arbitrarily, illegally, capriciously, irregularly or exceeds
its jurisdiction; and allows the High Court to guarantee the delivery of justice while ensuring
that the proceedings are conducted in accordance with the rule of law and furtherance of
fairness. It must be noted that the judges of subordinate courts have the absolute authority to
decide on cases. They do not commit any “jurisdictional error” even when they wrongfully or
extra-judicially decide a case. The High Court has the power to revise these jurisdictional errors
committed by subordinate courts. This provides an opportunity to any aggrieved party to rectify
a non-appealable order by a subordinate court.

The High Court can revise any case by a subordinate court in which no appeal lies when:

1. The subordinate court has exercised jurisdiction not vested in it by law.

 2. The subordinate court has failed to exercise jurisdiction vested in it by law.
3. The subordinate court exercises its jurisdiction illegally or with material irregularity or in
breach of some provision of the law or by committing some errors of procedure in the
course of the trial which may have affected the ultimate decision.

Who may file?

The application for revision can be filed by any aggrieved party once the case is decided,
provided that there is no appeal against the case presently. The High Court may then decide to
revise the case if the proper cause is discovered such as extra-judicial activity or illegal and
erroneous procedure practised by the subordinate court. The High Court may also exercise
revisional jurisdiction suo moto under the Code of Civil Procedure.

In the case of S.Muthu Narayanan V. Paulraj Naicker, 2018, the revision petition is dismissed
and the order passed previously is confirmed as the revision petitioner has no right to challenge
the executability of the decree.

Conditions for Revision

The conditions when the High Court can exercise its revisional jurisdiction is laid down
in Section 115 of the Code of Civil Procedure. All these conditions must be met for the High
Court to exercise its revisional jurisdiction. These are as follows:

Precedents
The case must have already been decided and judgement declared by the subordinate court. A
case cannot be revised if it has not been decided in the first place and no judgement is given.
The expression “case decided” was not defined in the CPC, 1908. This gave rise to a number of
conflicting decisions on the question of whether the said expression included an interlocutory
order also. This conflict was resolved in the case of Major S.S. Khanna V. Brig. F.J. Dillon,
1963 which declared that Section 115 applies even to interlocutory orders. It was observed by
Shah J.,“The expression ‘case’ is a word of comprehensive import; it includes civil proceedings
other than suits, and is not restricted by anything contained in Section 115 to the entirety of the
proceedings in a civil court. To interpret the expression “case” as an entire  proceeding only and
not a part of the proceeding would be to impose an unwarranted restriction on the exercise of
powers of superintendence and may result in certain cases in denying relief to the aggrieved
litigant where it is most needed and may result in the ‘perpetration of gross injustice.”

In the case of Baldevdas Shivlal V. Filmistan Distributors (India) (P) Ltd., 1969, the Supreme
Court held that a case may be said to have been decided if the court adjudicates for the
purpose of the suit some right or obligation of the parties in controversy. Every order in the suit
cannot be recorded as a case decided.
An explanation was added to Section 115 by the Amendment Act of 1976, on the
recommendation of the Joint Committee of Parliament. This makes it clear that the expression,
“case decided” includes any order made, or any order deciding an issue, in the course of a suit
or any other proceeding. Thus, “any case which has been decided” means each decision which
terminates a part of the controversy involving the question of jurisdiction.

       Click Above
No appeal lies
There must not be any appeal lying against the case decided by the subordinate court. The High
Court cannot revise a case if there is a pre-existing appeal against the case as the revision
interferes with the appeal and vice-versa. The revision can only be filed once the appeal is
dismissed. The word “appeal” includes both the first appeal and second appeal. Therefore, the
revision can only lie when the appeal is dismissed or does not lie.

Jurisdictional error
The revisional jurisdiction can be applied by the High Court when the subordinate court appears
to have:

1. Acted in excess of jurisdiction vested in it by law, or

2. Failed to exercise the jurisdiction vested in it by law, or
3. Displayed material irregularity and exercised its power illegally or in breach of the
provisions of law.

Subordinate court
The High Court cannot exercise revisional jurisdiction unless a case is decided by a court which
is subordinate to the High Court. Only a court of civil judicature is considered and this does not
include any person acting in an administrative capacity. As a general rule, where it is provided
that a matter should be decided by a particular court, the presiding officer of such court will act
as a court. But where it is provided that a particular judge should decide a matter, the
provisions of the statute will have to be considered for determining whether the judicial officer
acts as a court or as a persona designata. The revision by the High Court is mainly done to
rectify the jurisdictional or procedural errors caused by subordinate courts in the course of
proceedings in any case when an application is filed by an aggrieved party.

Alternative remedy
The power of revisional jurisdiction and its application lies under the discretion of the High
Court and cannot be claimed as a right by any aggrieved party. Several factors are considered
before the authority of revisional jurisdiction is exercised. If there is the presence of an
efficacious or alternate remedy available to the aggrieved party, the court may not exercise its
revisional jurisdiction and instead suggest the alternate remedy and relief to the aggrieved
party. This is done to prevent the misuse of revisional jurisdiction and make it applicable only in
cases where necessary.

Limitations on revisional jurisdiction

Article 131 of the Schedule of Limitation Act provides a limitation period of 90 days for filing the
revision under the Code of Civil Procedure from the date of decree or order or sentence sought
to be revised. Thus, the limitation period prescribed for filing the revision against the impugned
order is 90 days. The application for revision must be filed with the High Court within the
limitation period.

In the case of Salekh Chand V. Deepak Sharma 2015, During the pendency of the revision
petition, an application was filed under Section 5 of the Limitation Act by the revisionist. But it
was declared by the Court that Article 131 of the Schedule of Limitation Act stated that the
limitation period to file for revision is 90 days. Thus, the revision petition was not barred by
limitation and allowed to proceed.

In the case of Samudrala Nagabhushanam V. Venkana Raghavayy, 1966, the Court decided that
the petition for revision in this particular case was governed under Section 22 of the Andhra
Pradesh Buildings Control Act, 1960 and not Role 41-A(2) of the Appellate Side Rules of the High
Court of Andhra Pradesh. Thus, the revision is not barred by limitation.

Suo moto exercise of power

The term ‘suo moto’ means on its own motion or self-decision. The judiciary has the power to
revise cases suo moto. This means that the small court has the authority to make its own
decision to exercise the power of revision and takes the decision to revise any case on its own
accord, i.e. without any application filed by any aggrieved party. The sole decision as to the
exercise of the power of revision rests with the court and the aggrieved party is not entitled to
receive it. The judiciary takes up a matter on its own on grounds of blatant violation of the law,
to maintain public order, to prevent the gross constitutional violation, to remedy grave
injustice. This assumes the public at large as one of the parties. Usually, an amicus curiae is
appointed in such matters to assist the court. A great amount of public interest rests in suo
moto exercise of revisional powers by the High Court.

In the case of Chimanbhai G. Patel V. D.Y. Collector, 1999, it was stated by the Court that a
Deputy Collector or Assistant Collector cannot exercise the powers of revision suo moto.
Therefore, the order was set aside as there was no jurisdiction in the exercise of revisional
powers.

Interlocutory Orders
The Interlocutory order which is often called interim order is a decision of the court given
during the proceedings and before the finality of a case to ensure that the interest of either
party is not harmed due to or during the process of justice. It settles subordinate issues related
to the main subject due to the time-sensitive nature of those issues. Section 94 of Part VI of the
Code of Civil Procedure lists the ‘Supplemental Proceedings’ which mentions how the court can
issue interlocutory orders to prevent the ends of justice from being defeated. The court can:

1. Issue a warrant for the arrest of the defendant or if he fails to comply with any order for
security, commit him to the civil prison.
2. Direct the defendant to produce any property belonging to him and furnish it as security
by placing it at the disposal of the Court.
3. Grant temporary injunction and commit a guilty person to a civil prison in case of
disobedience, and order his property to be attached and sold.
4. Appoint a receiver of any property and enforce the performance of his duties by
attaching and selling his property.
5. Make any such interlocutory orders as may appear before the Court to be just and
convenient.

A few examples of interlocutory orders are as follows:

1. Appointment of a Commissioner to conduct search and seizure.

2. Temporary Injunctions.
3. Appointing a Court Receiver to collect any payments or rent.
4. Assign security to maintain a cause.

In the case discussed in Sub-Committee on Judicial Accountability V. Union Of India, 1991, it was
held that the Supreme Court will refrain from passing any interlocutory order which has the
potential to and may interfere with or has an effect of pre-judgement on any delicate issue on
the mail matter.

Death of Applicant
The death of an applicant does not abate the proceedings of the application of revision as
revision is not governed under Order 22 of the Code of Civil Procedure. Once the application for
revision is filed, the proceedings shall continue despite the death of the applicant and the order
shall be given to the legal representative of the applicant.

Doctrine of Merger
The doctrine of merger is neither a doctrine of constitutional law nor a doctrine statutorily
recognised. It is a common law doctrine founded on principles of propriety in the hierarchy of
justice delivery system. It can be observed when litigants agree to a settlement and seek to
have their settlement incorporated in a court order. The doctrine of merger cannot be applied
universally. It will depend on the nature of jurisdiction exercised by the superior authority and
the subject-matter in challenge laid shall determine the applicability of merger. The superior
jurisdiction should be capable of reversing, modifying or affirming the order put in issue before
it. The High Court possesses the authority to reverse or modify the judgment of a subordinate
court in case of a violation of jurisdiction or failure to comply with the jurisdictional rules. The
doctrine of merger is based on the principle of union of two conflicting interests which cannot
be held by one person at the same time. As observed in Section 111(h) of the Transfer of
Property Act, 1882 leasehold rights in favour of the appellants are extinguished under the
doctrine of merger.

Procedure of Revision
Revisional jurisdiction of the High Court can be exercised suo moto to ensure the delivery of
justice. The authority to revise a case of jurisdictional error of subordinate courts lies with the
High Court and cannot be demanded as a right by any aggrieved party. This brings us to the
second method which involves an application filed by the aggrieved party for revision. This
merely brings the jurisdictional error of the subordinate court to the attention of the High Court
which may then decide to revise the case. The application may also be denied if the High Court
feels that substantial justice has been done. 

Once the High Court initiates the proceedings, the case is revised to ensure jurisdiction is not
exceeded by the subordinate court. But no changes can be made with regards to any decision
of the subordinate court even if unlawful, as long as the decision lies within its jurisdiction.
After a decision has been made and if there is extra-jurisdictional action by the subordinate
court, it is rectified and the reasons are recorded.

Recording of Reasons
The reasons for the dismissal of a case or changes to be applied in case of extra-jurisdictional
activity by a subordinate court are to be filed for record. The recording of reasons is done to
ensure the court can show cause or prove the basis of its decision for changes made or refusal
to make any change with regards to the jurisdiction of the subordinate courts.

Letters Patent Appeal

Letter patent appeal (LPA) is an appeal by a petitioner against a decision of a single judge by
another bench of the same court. There are chances that a single judge can go wrong when
dealing with facts or laws. Thus, a remedy is provided to challenge the decision of that single
judge by a bench of more than one judge of the same court. An LPA petitioner can save costs by
challenging the single judge this way rather than move the Supreme Court. Usually, judgment
and order passed under Article 226 of the constitution is appealable as LPA, but judgment and
order passed under Article 227 is not appealable under this category.
The rules regarding the application of the Letter Patent Appeal is as follows:

1. Letter patent appeal can be filed in the High Court and only in such High Courts that
have been established by the letter patent.
2. Division bench can file a letter patent appeal to the Supreme Court. It means it will also
include a full bench of 5 judges, 7 judges and also the Supreme Court.
3. Letter patent appeal is the only court established by a letter patent under the
constitution and it is called the second appeal.

Distinctions
Revision and Appeal

Sr.
Revision  Appeal
No.

An appeal can be made in any

An application for revision can only be
(1) court superior to the one that
made in the High Court.
passed the order or decree.

An application for revision can only be

made to the High Court challenging any An appeal can be made on a
(2) decision of the subordinate court when superior court after a decree or
no appeal lies against the decision in the order is passed by a lower court.
specified case.

The revisional power is under the

The right to appeal has been
discretion of the High Court and cannot
(3) provided as a substantive right
be claimed as a right by any aggrieved
by the statue.
party.

(4) Any case can be revised on the grounds An appeal can be made against a
of jurisdictional error by the subordinate judgement on the question of
 court. fact, or law, or both.

An appeal can only take effect

The High Court can exercise the powers
after a memorandum of appeal
(5) of revision by suo moto and filing an
is filed by the aggrieved party
application is not necessary.
before a superior court.

Revision and Second Appeal

Sr.
Revision  Second Appeal
No.

The second appeal is defined

Revision is defined under Section
(1) under Section 100 of the Code of
115 of the Code of Civil Procedure
Civil Procedure.

Revision of case lies on the ground of A second appeal lies in the High
(2) jurisdictional error of the subordinate Court on the ground of substantial
courts. question of law.

A revision can be invoked only when

A second appeal lies in the High
no appeal (either first or second) lies
(3) Court when the first appeal is
in the High Court or any subordinate
dismissed by a lower court.
court.

(4) The High Court cannot interfere with The High Court has the power to
an order passed by the subordinate interfere with a decree passed by a
court even if it is unlawful and wrong lower appellate court if it is
 as long as it lies under the court’s
unlawful or against the rule of law.
jurisdiction.

A question of fact cannot be decided A question of fact can be decided

(5) during the exercise of revisional in a second appeal under certain
jurisdiction. circumstances.

The High Court does not have

The High Court may decide to decline
discretionary powers in a second
(6) an application for revision if it is felt
appeal and cannot refuse to grant
that substantial justice has been done.
relief on equitable grounds.

Revision and Reference

Sr.
Revision  Reference
No.

Revisional proceedings can begin

A case is transferred by a
either by an application filed by an
(1) subordinate court to the High Court
aggrieved party or suo moto by the
for reference.
High Court.

Revision is done on the grounds of A case can be referred to a higher

jurisdictional errors committed by a court on the grounds of reasonable
(2)
subordinate court which is to be doubt in question of law by the
rectified by the High Court. subordinate court.
Revision and Review

Sr.
Revision  Review
No.

The authority of revision can only

be exercised by the High Court A review can be done by any court
(1)
under which revisional jurisdiction that passes the decree or order itself.
lies.

Revisional power can only be Review of a decree or order can be

(2) exercised when no appeal lies done even if an appeal lies against
against the order or decree. the decree or order.

The revisional power of the High An application must be filed by the

Court can be exercised suo aggrieved party for review in the
(3)
moto without any application by an court that passed the order or
aggrieved party. decree.

The grounds are laid down under Rule

Jurisdictional error by a subordinate
1 of Order 47 of CPC, on which an
(4) court is mainly the ground of
application can be made for the
revision.
review of a judgement.

The order passed to exercise

The order granting a review can be
revisional jurisdiction is non-
(5) appealed against in the court granting
appealable and cannot be
the review.
challenged.
Revision and Writ

Sr.
Revision  Writ
No.

Section 115 of the Code of Civil Article 226 in the Constitution of India,

(1) Procedure, 1908 defines 1949 mentions the writ jurisdiction of
revisional jurisdiction. the High Court.

A revision application can be A writ petition can be filed by any party

(2)
filed by the aggrieved party. completely unrelated to the issues.

A party can invoke revisional

Any party cannot invoke a writ after an
(3) jurisdiction after filing a writ in
application for revision.
the High Court.

Revision and Power of Superintendence

Sr.
Revision Power of Superintendence
No.

Section 115 of the Code of Civil Article 227 of the Constitution of

(1) Procedure, 1908 defines revisional India, 1949 mentions the power of
jurisdiction of the High Court. superintendence of the High Court.

Power of revision is only judicial and Power of superintendence is both

(2)
not administrative. judicial and administrative.
 Power of revision is statutory and Power of superintendence is
(3) can be abolished by the new constitutional and cannot be
legislation. curtailed or abolished by the statute.

Revisional powers have less

Power of superintendence has a
application and cannot be exercised
(4) wider application as compared to the
in all conditions as Section 115 is
revisional powers of the High Court.
restricted.

Conversion of Revision into Appeal

The nature and scope of revisional jurisdiction is different from appellate jurisdiction. If an
order impugned is revisable, it cannot be converted into an appeal if there is no presentation of
appeal in the eyes of law; as seen in the case of Munshi Singh v. Tula Ram (1980 MPLJ SN 61).
The second appeal cannot be converted into revision in exercise of discretion, as seen in the
case of T.K. Ramanujam Pillai v. Subramaniam (AIR 1967 Mad 298). If the revision is not
maintainable, the petitioner can file appeal explaining the delay by filing an application
under Section 14 of the Limitation Act along with memo of appeal, as seen in the case of Om
Prakash V. Dwarka Prasad, 2004.

Law commission’s view on Revision

The Law Commission states that the following should be kept in mind while exercising the
revisional powers of the High Court:

 The ruling of the Court is absolute unless the party to whom it applies can show cause
why it should not apply. This is Rule Nisi and should not be issued except under careful
and strict scrutiny.

1. The record of the subordinate court should not be called for where no stay in granted.
And where it is necessarily required copies are to be produced.
2. All efforts should be made to dispose of the revision within two to three months where
a stay is granted.

Conclusion
The power of revision of the High Court is exceptional and should be exercised when necessary
in cases where there is a defect in the proceedings due to jurisdictional error in the subordinate
courts which may result in a miscarriage of justice and beats the purpose of the rule of law. The
revisional powers are granted to the High Courts to ensure that there is a remedy to the
aggrieved party in case the system of justice falters due to jurisdictional errors. The High Court
has been granted the power to revise a case if it is observed that a subordinate court has not
acted according to the power vested in it by law under its jurisdiction.