Author- Ritesh Roshan Samartha

INTRODUCTION

The term ‘appeal’ has not been defined in the Code of Civil Procedure. It generally refers to the removal of a cause from an inferior to a superior Court to test the soundness of the decision of the inferior Court. In simple words, it is a remedy provided by law to nullify the decree of the lower Court. The provisions relating to the appeal to Supreme Court (hereinto referred as SC) has been provided in the Constitution of India from Article 132 to Article 134A and in Section 109 and Order XLV of the Code of Civil Procedure, 1908.

Right to Appeal substantive as well as a statutory right. It has been conferred by the appeal statute. This right arises as soon as the Court pronounces judgement against the party. This Right can be waived by the party if the concerned party has accepted the benefits under the decree. Thus it was stated in the case of Veeraya vs. Subbia Chaudhury[1]. that the Right to Appeal cannot be taken away if available on the date of institution of the suit and subsequent law passed taking away Right of appeal. Although the fact that it may be exercised when the unfavourable judgement is given and such right are to be ruled by the law prevailing at the time of institution of the suit and not by the law that induces at the time of giving decision.[2]

It was stated in the case of Amarjeet Kaur vs. Pritam Singh[3] that when the appeal against a decree was pending, the SC has gone through the matter and became a sub-judice again. The trial court decree gets merged with the Appellate court decree and hence the court of appeals shall perform the same duties as imposed on the court of original jurisdiction.

PROVISIONS RELATING TO APPEAL UNDER CPC

Article 132 of the Constitution accommodates the Appellate Jurisdiction of SC in appeals from High Court (hereinto referred as HC) in situations where the appeals shall lie to the SC from judgement, decree or final order whether in Civil or Criminal or any other proceedings. Article 133 also prescribes if the High Court specifies or certifies that the particular case needs to be decided by the SC.

Article 133 was based on the provisions of Section 109 and Section 110. If we compare the Article with the Section, few differences that can be made out are previously, the right to appeal was confined to decrees and final order by the HC but now it is available against the judgement, decree and final order and even the certificate of fitness which was available for any order of HC has now been restricted to the final order.[4]

Article 136 allows the Court to grant leave to a case decided by any Court in India to become an appeal and under this, the term “Court” does not include which is constituted under the law relating to armed force.

Under CPC, appeal to the Supreme Court have been specified from Section 109 to Section 112 and in Order XLV. Section 109 prescribes certain conditions for the appeal from the judgement, decree or final order in a civil matter from High Court and it is subjected to the provisions of the Constitution of India. Notwithstanding that no allure can be recorded from the judgement, decree or final order of single a judge bench of the High Court. The conditions are if the High Court certifies that there is a substantive question of law involved in the case and this certificate is issued under Article 134A of the Constitution and that the said question is to be decided by the Supreme Court. There is even a limitation period of 60 days from the date of grant of the certificate by HC.[5]

The said Article 134A was inserted in the 44th Amendment of the Constitution of India. Before this, no provision dealt with the time and way of applying to the issue of the certificate. The object of this article is that the HC can allow the grant of a certificate under Article 132 either on its motion or on the oral application of the aggrieved party immediately after passing the judgement, decree or the final order.

It has been decided in the case of Union of India vs. Gopal Singh[6] that the test to find out whether the order is final or not shall rely on whether the disagreement is finally over but the disagreement raised before the High Court is eventually over or not.

Apart from this the “substantive question of law”, as stated in the first condition of Section 109, has not been defined in the CPC and it has to be constructed from the facts. One of the prime aspects is to test whether the question of law will benefit the general public or not. Moreover, the High Court ought to think that the specific question of law is of grave importance and therefore need to be decided by the Supreme Court. Another reason may be the lack of competency of the High Court in considering the issue related to that particular case. These two conditions must be fulfilled for SC to allow the appeals from the lower courts.

The second necessity is that the case should involve a reasonable or considerable question of law of general importance. Since this term is of great significance has not been outlines under the Code and in Mahindra and Mahindra Limited vs. Union of India[7], it was stated that the substantial question must of such nature that apart from the party to the litigation, the public ought to have an interest in the determination of such question in SC because it will affect a huge number of people or several cases having the same question of law.[8]

Even according to the 44th Law Commission of India report, the granting of certificate should not be taken lightly. It should be conceded only when the HC discovers it extremely difficult to decide the matter or in any exceptional circumstances.

PROCEDURE OF HEARING OF THE APPEAL IN THE SC

The procedure or methodology for Appeal to SC under Order XLV prescribes that a request for or petition for leave be made by the Appellant from the Court of law, the decision of which is claimed against. The period prescribed by law is sixty days from the order it the decision given by the Court. The said petition should state the specific grounds and it is solely after that the Court against whose decision an appeal is favored pulls out to the opposite side that is Judgment Creditor, in whose favor the case is chosen and really at that time an authentication or a Certificate is given to the judgment indebted person to Appeal before the Supreme Court.[9]

  • Application of leave or certificate of fitness – The party envious of filing an appeal on the certificate by the HC need to file a petition of appeal in SC.
  • Security and Deposits – Order XLV Rule 7 prescribes the provision of security, where it says the applicant need to within 90 days or in reasonable cause given, within further 90 days from the date of decree or within 6 weeks from the date certificate was granted, whichever is later. The SC at any point can revoke this security and under Order XLV Rule 10, after the admission of appeal but before the transmission of a copy of a record, the SC can ask for further security if it finds it to be inadequate. Other procedural aspects involving the furnishing of security and costs and so on which are alongside the procedure of admission by the Court to examine the declaration of allure by the subordinate court alongside checking if the amount is paid in a specified time so that such appeal may enter in records of the Supreme Court. From this time forward the arrangement, everyday summarizes the arrangements and methodology concerning the Appeal to the Supreme Court.[10]  
  • Admission of Appeal – Under Order XLV Rule 8, the procedure of admission is given. After furnishing of security, the Court shall declare the appeal has been admitted, give notice of such admission to the respondent, transmit a correct copy of the said record under the seal of the court and provide one or more authenticated copies of any paper in a suit to either party.
  • Pending appeal – Under Order XLV Rule 13 of the Code prescribes the power of the Court pending Appeal. It is an order given by Court which suspends the Court proceeding but it does not prevent the other party from imposing the order of a lower Court. In the case of Videocon vs. SEBI[11], the Court held that if the right to Appeal is restricted, it does not affect the right to Appeal in pending proceedings, unless expressly so expressed.
  • Execution of Orders – Order XLV Rule 16 of the Code states that the order made by the Courts or Supreme Court, will be appealable in a similar manner as the rules as the orders of that Court relating to the execution of the decree.

CONCLUSION

The Supreme Court is the highest Court of Appeal in India. The power of Appeal had been provided to the SC by the Constitution of India in Articles 132, 133, 134 and 134A. Other statutory provisions include Section 109 and Order XLV of the Code of Civil Procedure. However, certain conditions have been specified for filing an appeal in SC and the due procedure prescribed need to be flowed as well. The power has been given against the cases where the substantial question had not been justified or the decision of the High Court was not satisfactory. It is of great importance as the party can get the remedy out of it.


[1] 1957 AIR 540.

[2] K. P. Singh, The Jurisdiction of the Supreme Court of India (Evolution of provisions relating to it in the Constituent Assembly of India), 25 Indian J. Polit. Sci. 192–199 (1964).

[3] 1974 AIR 2068.

[4] Mariya Paliwala, Appeals to Supreme Court under Civil Procedural Code, 1908, iPleaders (2019), https://blog.ipleaders.in/appeals-supreme-court/.

[5] Appeals before the Supreme Court of India, , https://www.indialawoffices.com/knowledge-centre/appeals-before-the-supreme-court-of-india.

[6] AIR 1957 Raj 17.

[7] 1979 AIR 798.

[8] Singh, supra note 1.

[9] How to appeal – The Supreme Court, , https://www.supremecourt.uk/procedures/how-to-appeal.html.

[10] Id.

[11] Civil Appeal No. 117 of 2005.

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