Appeals to the Supreme Court
Chapter Forty-Nine
Syllabus topic 4.2, "Appeals, reference, review, revision (Order XLI to XLVII)"
Pages 287 to 291 of 365
In one line
An appeal to the Supreme Court from a civil proceeding lies where the High Court certifies that the case involves a substantial question of law of general importance which needs to be decided by the Supreme Court.
Why the Code says so little
The right of appeal to the Supreme Court is constitutional, not statutory. Chapter IV of Part V of the Constitution creates it, and Article 136 gives the Supreme Court its own discretionary power to grant special leave from any judgment of any court or tribunal. The Code therefore does not create the right; it regulates the steps a High Court and the parties take when a certified appeal is sought.
That is why this chapter is short, and why an answer should begin by saying where the right actually comes from.
The certificate: section 109
Section 109: subject to the provisions in Chapter IV of Part V of the Constitution and to such rules as may from time to time be made by the Supreme Court regarding appeals from the Courts of India, and to the provisions hereinafter contained, an appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court, if the High Court certifies:
(i) that the case involves a substantial question of law of general importance; and (ii) that in the opinion of the High Court the said question needs to be decided by the Supreme Court.
Both limbs are required, and the difference between them is worth drawing out, because candidates give only the first.
Limb (i) is about the question: it must be a substantial question of law, and it must be of general importance, not merely important to these parties. That is a higher bar than section 100, where a substantial question of law suffices for a second appeal without any requirement of general importance. See [Appeals from Appellate Decrees].
Limb (ii) is about necessity: even a question of general importance does not carry a certificate unless the High Court thinks it needs to be decided by the Supreme Court, for instance because the authorities conflict or the point is unsettled.
Section 112 saves the position under the Constitution and preserves the Supreme Court's powers, providing that nothing in the Code shall be deemed to affect the powers of the Supreme Court under Article 136 or any other provision of the Constitution, or to interfere with any rules made by the Supreme Court.
So the Code's certificate route sits alongside special leave under Article 136, which needs no certificate and is entirely in the Supreme Court's discretion. A party refused a certificate is not shut out; he may petition for special leave.
Appeals to the Supreme Court
The constitutional provisions in outline
For a civil proceeding the relevant articles are these.
Article 132: an appeal lies to the Supreme Court from any judgment, decree or final order of a High Court, in a civil, criminal or other proceeding, if the High Court certifies under Article 134A that the case involves a substantial question of law as to the interpretation of the Constitution.
Article 133: an appeal lies from any judgment, decree or final order in a civil proceeding of a High Court if the High Court certifies under Article 134A that the case involves a substantial question of law of general importance and that in the High Court's opinion that question needs to be decided by the Supreme Court. Those are the same two limbs as section 109.
Article 134A requires the High Court to consider the question of a certificate immediately after passing the judgment, either on its own motion or on an oral application made by an aggrieved party immediately after the judgment is delivered.
Article 136: the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed by any court or tribunal in India, except a court or tribunal constituted under any law relating to the Armed Forces.
The practical position is worth stating plainly: most civil appeals reach the Supreme Court under Article 136, not under a certificate, because certificates are sparingly given.
Procedure: Order XLV
Rule 1 defines "decree" for the purposes of the Order as including a final order passed on appeal, a final order passed under the Code, and a final order passed in a suit or proceeding.
Rule 2: whoever desires to appeal to the Supreme Court shall apply by petition to the Court whose decree is complained of.
Rule 3: every such petition shall state the grounds of appeal and pray for a certificate that the case fulfils the requirements of the Constitution and the Code, and the Court shall direct notice to the opposite party.
Rule 7: where the certificate is granted, the applicant shall furnish security for the costs of the respondent and deposit the amount required to defray the expense of translating, transcribing, indexing and transmitting the record, within such time as the Court may direct.
Rule 8: where the security and deposit are furnished, the Court shall declare the appeal admitted, give notice to the respondent, transmit a correct copy of the record to the Supreme Court, and give the parties a certified copy of the judgment.
Appeals to the Supreme Court
Rule 13 allows the Court, pending the appeal, to make orders for the stay of execution or for the security of the property in dispute, on the terms it thinks fit.
Rule 15 provides for the execution of the Supreme Court's orders: the Court which passed the decree appealed from executes the Supreme Court's decree or order in the same manner as its own.
Rule 16: the Supreme Court's decree or order shall be transmitted to the Court from which the appeal came, and the parties may apply for its execution.
Appeals by indigent persons: Order XLIV
Order XLIV Rule 1: any person entitled to prefer an appeal, who is unable to pay the fee required for the memorandum of appeal, may present an application accompanied by a memorandum of appeal, and may be allowed to appeal as an indigent person, subject to the provisions relating to suits by indigent persons so far as they are applicable.
Rule 2: the provisions of Order XXXIII relating to inquiry into the means of an indigent person apply to inquiries under this Order.
Rule 3(1): where the applicant was allowed to sue or appeal as an indigent person in the court below, no further inquiry into his means is necessary if he makes an affidavit stating that he has not ceased to be an indigent person since the date of the decree appealed from.
That is the same scheme as Order XXXIII carried into appeals, and it is why Order XXXIII Rule 17 extends that Order to appeals. See [Suits by Indigent Persons].
A worked example
Lakshmi loses in the High Court in a civil matter and wants to go to the Supreme Court.
What does she need? Under section 109 and Article 133, a certificate from the High Court that the case involves a substantial question of law of general importance and that in the High Court's opinion the question needs to be decided by the Supreme Court.
When must she ask? Under Article 134A the High Court considers the question immediately after passing judgment, on its own motion or on her oral application made immediately after the judgment is delivered.
How does she apply under the Code? Order XLV Rules 2 and 3: by petition to the High Court, stating the grounds and praying for the certificate, with notice to the opposite party.
The certificate is granted. Rule 7: she must furnish security for the respondent's costs and deposit the expenses of preparing and transmitting the record. Rule 8: the appeal is then declared admitted and the record transmitted.
She wants execution stopped meanwhile. Rule 13 allows the Court to make orders for stay of execution or for the security of the property in dispute.
Appeals to the Supreme Court
The certificate is refused. She is not shut out. Section 112 preserves the Supreme Court's power under Article 136, and she may petition for special leave, which needs no certificate.
The question is one of constitutional interpretation. Then the route is Article 132, on a certificate that the case involves a substantial question of law as to the interpretation of the Constitution.
She cannot afford the court fee on the appeal. Order XLIV Rule 1 allows her to apply to appeal as an indigent person, and under Rule 3(1), if she was allowed to sue as an indigent person below, no further inquiry into her means is needed on an affidavit that she has not ceased to be indigent.
The Supreme Court decides in her favour. Order XLV Rules 15 and 16: the decree is transmitted back and executed by the court which passed the decree appealed from, in the same manner as its own.
What it does not mean
The Code does not create the right of appeal. It comes from Chapter IV of Part V of the Constitution, and section 112 preserves the Supreme Court's own powers and rules.
A substantial question of law is not enough. Section 109 requires it to be of general importance and to need decision by the Supreme Court.
A refused certificate is not the end. Article 136 special leave remains, in the Supreme Court's discretion.
The Supreme Court does not execute its own civil decree. Order XLV Rule 15 sends it back to the court which passed the decree appealed from.
Quick revision
Section 109: appeal to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court, if the High Court certifies (i) a substantial question of law of general importance and (ii) that it needs to be decided by the Supreme Court. Subject to Chapter IV of Part V of the Constitution and the Supreme Court's rules.
Section 112: nothing in the Code affects the Supreme Court's powers under Article 136 or its rules.
Constitution: Article 132, substantial question as to the interpretation of the Constitution; Article 133, the two limbs above for civil proceedings; Article 134A, the certificate considered immediately after judgment; Article 136, special leave, discretionary, no certificate needed.
Order XLV: petition to the court whose decree is complained of, Rule 2; grounds stated and notice to the opposite party, Rule 3; security for costs and deposit for the record, Rule 7; appeal declared admitted and record transmitted, Rule 8; stay of execution pending appeal, Rule 13; the Supreme Court's decree executed by the court which passed the decree appealed from, Rules 15 and 16.
Appeals to the Supreme Court
Order XLIV: appeal as an indigent person, with no fresh inquiry into means where he was allowed to sue as one below and swears he has not ceased to be indigent.
Test yourself
1. When does an appeal lie to the Supreme Court under section 109? From any judgment, decree or final order in a civil proceeding of a High Court, where the High Court certifies that the case involves a substantial question of law of general importance and that in its opinion that question needs to be decided by the Supreme Court, subject to Chapter IV of Part V of the Constitution and to the rules of the Supreme Court.
2. How does that differ from a second appeal under section 100? A second appeal requires only a substantial question of law. An appeal to the Supreme Court requires that the question be of general importance and, in addition, that the High Court be of opinion that it needs to be decided by the Supreme Court.
3. What happens if the High Court refuses a certificate? The party may petition the Supreme Court for special leave under Article 136, which the Supreme Court may grant in its discretion from any judgment or order of any court or tribunal in India, and which requires no certificate. Section 112 expressly preserves that power.
4. To whom is the application for a certificate made? By petition to the Court whose decree is complained of, under Order XLV Rule 2, stating the grounds and praying for the certificate, with notice to the opposite party under Rule 3.
5. What must an appellant do once the certificate is granted? Under Order XLV Rule 7, furnish security for the costs of the respondent and deposit the amount required to defray the expense of translating, transcribing, indexing and transmitting the record, within the time the Court directs, whereupon the appeal is declared admitted under Rule 8.
6. Who executes a decree of the Supreme Court? Under Order XLV Rules 15 and 16 the decree or order is transmitted to the Court from which the appeal came, and is executed by the Court which passed the decree appealed from in the same manner as its own decree.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.