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Civil Appeals in India: First and Second Appeals


An appeal is a legal remedy available to individuals seeking justice against an unjust decree or order by presenting it to a superior court. The provisions outlined in Sections 96 to 99A, 107 to 108, and Order 41 of the Code of Civil Procedure (CPC), 1908 govern appeals from original decrees, commonly known as First appeals and Second appeals are dealt with in sections 100 to 103 and Order 42 of the Code. 

During an appeal, a higher court reviews the decision made by a lower court, considering both legal and factual aspects


The term ‘appeal’ is not explicitly defined in CPC. however Black’s Law Dictionary, it describes it as a complaint presented to a superior court to rectify an injustice or error committed by a lower court. The superior court is called upon to correct or reverse the judgment or decision of the inferior court. Essentially, an appeal involves transferring a case from a lower court to a higher court with the purpose of obtaining a review and retrial.

The higher court has the jurisdiction to affirm, reverse, modify the decision, or send the matter back to the lower court for a fresh decision in accordance with its instructions. There are three essential elements to consider when appealing a case: a decree issued by a judicial or administrative authority, an aggrieved person (not necessarily a party to the original proceeding), and a reviewing body established specifically to entertain such appeals.

First Appeal

Section 96 of 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.

Procedure of Appeal: 

Order 41 sets out certain requirements made for procedure of appeal that makes a first appeal maintainable. Accordingly, a combined reading of Sections 2(2), 2(9), & 96 of the CPC indicates that a regular First appeal may not be maintainable against certain adjudications.

  1. To initiate an appeal, the appellant or their advocate must submit a memorandum of appeal to the competent officer of the court, as stated in Order 41, Rule 1. If the advocate signs the memorandum, it is necessary to include a Vakalatnama, a document authorizing the advocate to act on behalf of the appellant. The memorandum of appeal must be accompanied by a copy of the order being appealed against.
  2. In the memorandum of appeal, the objections to the decree should be succinctly stated under different headings, without providing detailed particulars or arguments. These grounds of objections should be numbered. It is crucial to include these grounds in the memorandum, as the court will only consider and hear the grounds that are explicitly mentioned. Any grounds not stated in the memorandum may be considered at the court’s discretion, but a decision on those grounds will not be made until the affected party has been given an opportunity to be heard, as per Order 41, Rule 2.
  3. If the memorandum of appeal does not adhere to the specified format, the court has the authority to reject it immediately or return it to the appellant for necessary amendments, in accordance with Order 41, Rule 3. Once the court accepts the memorandum of appeal, the date of submission will be recorded on it, and it will be registered in the register of appeals, in accordance with Order 41, Rule 9.
  4. Following the submission of the memorandum of appeal, the appellant court may issue a stay order to halt the proceedings in the subordinate court. However, this order will only be granted if the court determines that the appellant would suffer significant harm without such an order. Additionally, the court must consider the interest of the public when deciding whether to halt the execution of the decree. As clarified in the case of Maya Devi Vs M/s Dharampal Madanlal, 1989, the power to stay proceedings lies with the appellant court and not the execution court. 
  5. If the appellant fails to appear on the scheduled day of the hearing or on a postponed hearing date, the appeal may be dismissed, as stated in Order 41, Rule 17. Alternatively, if the appellant provides sufficient reasons for their absence and the court is convinced, an ex-parte order may be issued, as per Order 41, Rule 21. Similarly, if valid reasons are presented for the appellant’s absence, the court may order the appeal to be re-listed for a hearing, as outlined in Order 41, Rule 19. 
  6. The court has the discretion to admit additional evidence if it is material to the appeal’s merits and was not available during the trial of the case, according to Order 41, Rule 27.

Ultimately, after providing both parties with a fair opportunity to be heard, the court will pronounce its decision on the appeal in open court, as specified in Order 41, Rule 30. The decision must be announced immediately after the conclusion of the hearing. Any significant delay in announcing the decision, such as the case of Bhagwandas Fatechand Daswani v. HPA International 2000, where the decision was delivered after five years, may be considered unjust.

Second Appeal

The provisions for the initiation of a second appeal have been set forth in sections 100 to 103 and order 42 of CPC. Section 100 establishes the right to appeal to the High Court from a decree issued by a subordinate court in the first appeal, subject to certain exceptions. The jurisdiction exercised under this section is restricted to addressing a substantial question of law either framed during the admission of the appeal or otherwise. 

Second appeal can be made against decision made in first appeal under the certain conditions:

  • Firstly, it may be invoked when a substantial question of law is involved, as illustrated by the case Sir Chunilal Mehta and Sons v The Century Spinning And Manufacturing Co., Ltd. In this case, the court held that the determination of whether a raised question of law is of general public importance or significantly affects the parties’ rights is the appropriate test. 
  • Secondly, a second appeal may be initiated when an ex-parte decree has been passed in the first appeal. This circumstance allows for the consideration of a substantial question of law in the second appeal, as clarified in the case Monika Pusali v. Anjali Amma, 2005.

However, it is important to note that a second appeal cannot be filed solely based on findings of fact, as established in the case Kalidas v. Ram Singh, 1973. 

In the case of Govind Raju v. Mariyamman, 2005, the Supreme Court examined the criteria for considering a question of law in a second appeal. The court identified the following characteristics of a debatable question of law that meets the requirements for consideration:

  1. The question should be open to argument and discussion.
  2. The question should not have been previously decided by the applicable law.
  3. The question should significantly impact the substantive rights of the parties involved.

No Second Appeal in Certain Cases 

The scope of the second appeal process has been restricted in Section 102. Accordingly, a second appeal is not permitted in suits falling within the purview of Courts of Small Causes, provided that the amount or value of the subject matter of the original suit does not exceed three thousand rupees.

Section 102 imposes a limitation on the right to file a second appeal in certain types of suits. Specifically, it declares that if a suit falls within the jurisdiction of the Courts of Small Causes and the monetary value involved in the original suit does not surpass three thousand rupees, no second appeal can be initiated.

This provision seeks to strike a balance between facilitating access to justice and efficient case management. It recognizes that the second appeal process involves substantial time, effort, and resources of both the courts and the parties involved. Therefore, limiting the scope of second appeals to cases involving a higher value ensures that the appellate courts can focus their attention on matters of greater significance and complexity.


Appeals are recognized as statutory rights of persons aggrieved by any decision of an inferior court in the interest of justice. 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. 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.


Written by, Parthvi Patel, United World School of Law



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