Section 100 of The Code of Civil Procedure, 1908
Second appeal.
1[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 sub-section 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.] STATE AMENDMENT Kerala. In sub-section (1) of section 100 of the Principal Act, after clause (c), the following clause shall be added, namely:
- (d)the finding of the lower appellate court on any question of fact material to the right decision of the case on the merits being in conflict with the finding of the Court of first instance on such question. [Vide Kerala Act 13 of 1957 sec. 4.]
Summary
- A "second appeal" can be made to the High Court if the case involves a "substantial question of law".
- A substantial question of law is a major legal disagreement, not just a fight over the facts of what happened.
- The appeal is made against a decree passed by a lower court that was already acting as an appellate court.
- Even if the first appeal was decided "ex parte," which means only one side was present, a second appeal is still possible.
- The person appealing must precisely state the legal question they want the High Court to answer.
- The High Court itself will formally state the question and hear the appeal only on that specific point.
Practical examples
FAQ
1. When can I file a second appeal under Section 100 of the Code of Civil Procedure, 1908?
You can file a second appeal under Section 100 of the Code of Civil Procedure, 1908, if the High Court is satisfied that the case involves a "substantial question of law".
2. Do I need to explain the legal problem in my appeal under Section 100 of the Civil Procedure Code?
Yes, Section 100 of the Civil Procedure Code requires that the memorandum of appeal precisely state the substantial question of law involved.
3. Can the High Court choose the questions it hears in a second appeal under Section 100 of the Civil Procedure Code?
Yes, under Section 100 of the Civil Procedure Code, the High Court shall formulate the question it considers substantial and hear the case on that basis.
4. Can I appeal a decision where I wasn't present under Section 100 of the Code of Civil Procedure, 1908?
Yes, Section 100 of the Code of Civil Procedure, 1908, explicitly says an appeal may lie from an appellate decree passed ex parte.
Test yourself
1.What is the primary requirement for a second appeal under Section 100 of The Code of Civil Procedure, 1908?
2.Under Section 100 of The Code of Civil Procedure, 1908, who has the authority to hear a second appeal?
3.What must be included in the "memorandum of appeal" according to Section 100 of The Code of Civil Procedure, 1908?
4.If a party failed to appeal a preliminary decree under Section 97, and then tries to raise that legal issue in a second appeal under Section 100 of The Code of Civil Procedure, 1908, the court should:
5.According to Section 100 of The Code of Civil Procedure, 1908, can an appellate decree passed "ex parte" be appealed?