Appeal to Supreme Court

Appeal to Supreme Court under Civil Procedure Code

When a decree is appealed to a superior court initially, it is called the first appeal and if the same is appealed again, a second appeal lies to the High Court. But when a High Court passes a decision against one party and against another, the judgement debtor may even appeal to the Supreme Court. The provisions deals with the appeal to Supreme Court are provided under the Constitution of India which is Article 132 to 133-A along with Section 109 and Section 112 of the Code of Civil Procedure, 1908.

Article 132 provides for the appellate jurisdiction of Supreme Court in appeals from High Courts in cases where an appeal shall lie to the Supreme Court from any judgment, decree or final order of a High Court in the territory of India, whether 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 t the interpretation of this Constitution. It further provides that where such a certificate is given, any party in the case may appeal to the Supreme Court on the ground that any such question as aforesaid has been wrongly decided Explanation For the purposes of this article, the expression final order includes an order declaring an issue which, if decided in favour of the appellant, would be sufficient for the final disposal of the case.

The content of the Article 133 and Section 109 and 112 are similar which generally provides for the conditions where an appeal would lie to the Supreme Court of India along with Order 45 Rule 3 which provides for the procedural part. An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court in the territory of India if the High Court certifies under Article 134A.[1] The bare language of Article 134-A provides that Certificate for appeal to the Supreme Court Every High Court, passing or making a judgment, decree, final order, or sentence, referred to in clause (1) of Article 132 or clause (1) of Article 133, or clause (1) of Article 134 may, if it deems fit so to do, on its own motion; and shall, if an oral application is made, by or on behalf of the party aggrieved, immediately after the passing or making of such judgment, decree, final order or sentence, determine, as soon as may be after such passing or making, the question whether a certificate of the nature referred to in clause (1) of Article 132, or clause (1) of Article 133 or, as the case may be, sub clause (c) of clause (1) of Article 134, may be given in respect of that case.

Therefore it can be construed from above mentioned provision that no certificate can be obtained in case of an interlocutory order. It was also decided  that the test whether the order is final or not will not depend on whether the controversy is finally over but whether the controversy raised before the High Court is finally over or not. [2]

The second prerequisite is that the case must involve a substantial question of law of general importance. Since the term substantial question of law of great importance is not defined in the Code, it must be construed from the circumstances of each case.  It is decided that substantial question of law must be such that apart from the parties to the litigation, the general public should be interested in the determination of such question by the Supreme Court as it would affect a large number of persons or a number of proceedings involving the same question.[3]

The third requisite construed from the Article 133 is that in the opinion of the High Court the said question needs to be decided by the Supreme Court. This means that the fulfilment of the condition that such is a substantial question of law of great importance is not sufficient to be decided by the Supreme Court but in fact, the High Court must be of opinion that such question needs to be decided by the Supreme Court. The word need therefore put a peculiar emphasis on the necessity which is called for to decide that case appealed for.

The Article further provides that notwithstanding anything in Article 132, any party appealing to the Supreme Court under clause (1) may urge as one of the grounds in such appeal that a substantial question of law as to the interpretation of this Constitution has been wrongly decided and notwithstanding anything in this article, no appeal shall, unless Parliament by law otherwise provides, lie to the Supreme Court from the judgment, decree or final order of one judge of a High Court[4].

The procedure for Appeal to Supreme Court under Order 45 provides that a petition of leave is to be made by the appellant from the court, the decision of which is appealed against. The period of appeal to Supreme Court is sixty days from the decision given by such court. The petition should also state the grounds which have been stated above and it is only after  that the court against whose decision an appeal is preferred gives notice to the other side that is judgement creditor,  in whose favour the case is decided and only then a certificate is given to the judgement debtor to appeal before the Supreme Court.

Other procedural aspects involving furnishing of security and costs, etc which are mandatory along with the procedure of admission by the court to scrutinise the certificate of appeal by the subordinate court along with checking if the expenses are paid in stipulated time so that such appeal may enter in records of the Supreme Court. Henceforth the provision, in general sums up the provisions and procedure in regard to the Appeal to the Supreme Court.


References

[1] Article 133

[2] Union of India v. Gopal Singh (1976) 2 SCWR 639

[3] Mahindra and Mahindra limited v. Union of India AIR 1979 Sc 798

[4] Article 133 (2) and (3)

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