Maintainability of Second Appeals under Section 100 CPC

Source: Allahabad High Court 

Why in News? 

Justice Dr. Yogendra Kumar Srivastava of the Allahabad High Court in Tarkeshwar Pandey v. Deenanath Yadav and Others (2025) dismissed a second appeal filed under Section 100 of the Civil Procedure Code, 1908 (CPC), holding that such appeals are maintainable only against decrees passed in appeal, not against orders passed in miscellaneous appeals under Section 104(1). 

What was the Background of Tarkeshwar Pandey v. Deenanath Yadav and Others (2025) Case? 

• The appellant (plaintiff) had filed an application seeking injunction in the trial court, which was rejected on July 25, 2023. 
• Against this rejection, the appellant filed a Civil Appeal under Section 104(1) read with Order XLIII Rule 1(r) before the District Judge, Ballia. 
• The District Judge dismissed the civil appeal on March 20, 2025, confirming the trial court's order rejecting the injunction application. 
• The appellant then filed a Second Appeal under Section 100 CPC before the Allahabad High Court against the order passed by the District Judge. 
• The Stamp Reporter submitted a report stating that the appeal appeared non-maintainable as it was filed against an order passed in a miscellaneous appeal. 
• The appellant's counsel argued that since the impugned order was passed by a court exercising appellate jurisdiction, a second appeal under Section 100 CPC would be maintainable. 
• The respondent's counsel controverted this submission, contending that Section 100 CPC applies only to decrees passed in appeal, not to orders passed in miscellaneous appeals.

What were the Court's Observations? 

• The Court emphasized that a 'decree' and an 'order' are distinct concepts under the CPC. A decree (Section 2(2)) conclusively determines the rights of parties in a suit, while an order (Section 2(14)) is any decision that is not a decree. 
• The Court held that Section 100 CPC explicitly provides that second appeals lie only from decrees passed in appeal, not from orders. The language is clear and unambiguous. 
• Order XLIII Rule 1 specifies appealable orders under Section 104(1). However, Section 104(2) creates an absolute bar, stating: "No appeal shall lie from any order passed in appeal under this Section." This means there is no second miscellaneous appeal and no second appeal under Section 100 against orders passed in miscellaneous appeals. 
• Since the impugned order was passed in a miscellaneous appeal under Section 104(1) read with Order XLIII Rule 1(r), it is not a decree. Therefore, the second appeal was not maintainable. 
• The appellant's counsel sought permission to withdraw the appeal with liberty to avail appropriate legal remedy. The Court dismissed the appeal accordingly.

What is Section 100 of CPC? 

Statutory Provisions: 

• Section 100 CPC provides for second appeal to the High Court from an appellate decree passed by subordinate courts. 
• Appeal lies only if the High Court is satisfied that the case involves a substantial question of law. 
• The memorandum of appeal must precisely state the substantial question of law involved. 
• When satisfied, the High Court shall formulate the substantial question of law. 
• The appeal is heard on the formulated question, though the court retains power to hear on other substantial questions of law if necessary. 

Nature and Scope of Jurisdiction: 

• No vested right of appeal exists unless the statute provides for it. 
• The first appellate court is declared as the final court on facts. 
• High Court cannot reappreciate evidence or facts unless a substantial question of law is involved. 
• High Court has no jurisdiction to interfere with findings of fact, however gross the error may appear. 
• High Court is not a second court of first appeal. 

Historical Context: 

• Section 100 was amended in 1976, imposing drastic restrictions on High Court's jurisdiction. 
• Even before 1976, the Privy Council treated the first appellate court as final on facts. 
• The amendment aimed to prevent High Courts from disposing of second appeals without substantial questions of law. 

Mandatory Requirements: 

• Appellant must formulate the substantial question of law in the memorandum of appeal (Sub-section 3). 
• High Court must expressly and specifically formulate the substantial question of law (Sub-section 4). 
• The appeal must be heard only on the formulated question (Sub-section 5). 
• Exercise of appellate jurisdiction without fulfilling statutory mandate renders the judgment a nullity. 

Prohibited Grounds for Interference: 

• High Court cannot set aside findings of fact and reappraise evidence. 
• Cannot interfere merely because findings are against the weight of evidence. 
• Cannot interfere only because the first appellate court did not address the trial court's reasoning in detail. 
• Cannot entertain second appeal on grounds of erroneous findings of fact. 

Consequences of Non-Compliance: 

• Second appeal allowed without framing substantial question of law is liable to be set aside. 
• No remand to High Court as appellant cannot benefit from their own wrong of not fulfilling mandatory requirements. 
• Judgment rendered without following proper procedure cannot be sustained. 

Exceptions and Flexibility: 

• Appeal may lie from appellate decrees passed ex parte (Sub-section 2). 
• High Court can hear appeal on other substantial questions of law not originally formulated, with recorded reasons (Proviso to Sub-section 5). 
• Formulation of substantial question may be inferred from questions actually considered and decided, though this view has been criticized.