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CPC, 1908 · Part VII · Appeals · Second appeals (§§100–103)

Section 100 — Second appeal

A first appeal re-opens facts and law; the second appeal does not. From an appellate decree of a court subordinate to the High Court, a further appeal lies only to the High Court, and only on a substantial question of law. The High Court must formulate that question, and the appeal is heard on it — the facts found below are closed.

§ 100

How to read Section 100

Law only, to the High Court (1)

A second appeal lies to the High Court from every appellate decree of a subordinate court — but only if the case involves a substantial question of law. Findings of fact are not re-opened.

The gateway process (3)(4)(5)

The memorandum must precisely state the question (3); the High Court, if satisfied, formulates it (4); and the appeal is heard on the formulated question, the respondent free to argue it does not arise (5).

Width kept; ex parte too (proviso, 2)

The court may still hear another substantial question not formulated — for reasons recorded (proviso). And a second appeal lies even from an ex parte appellate decree (2).

The bare Act

Section 100 · verbatim (substituted 1976)

(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.→ Procedure for second appeals: Order XLII (which applies Order XLI)

(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.

1. The present § 100 was substituted for the old section by Act 104 of 1976, s. 37 (w.e.f. 1-2-1977) — replacing the earlier clause-based grounds of second appeal with the single “substantial question of law” gateway. Second-appeal procedure is in Order XLII.

State amendment — Kerala

Kerala · Act 13 of 1957, s. 4

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.

This amendment was made to the pre-1976 § 100(1), which then listed enumerated grounds (a)–(c); Kerala added a (d) ground allowing a second appeal where the two courts below differed on a material question of fact. The Central 1976 substitution later replaced the whole clause-based scheme with the “substantial question of law” test, so this State clause belongs to that earlier framework.

[Vide Kerala Act 13 of 1957, s. 4.]

What changed in 1976

Act 104 of 1976, s. 37 (w.e.f. 1-2-1977) — the whole of § 100 substituted

Before 1977Second appeal lay on enumerated grounds: (a) the decision being contrary to law or to a usage having the force of law; (b) failure to determine a material issue of law or such usage; (c) a substantial error or defect in procedure that may have produced error in the decision on the merits.

From 1-2-1977A single gateway: a second appeal lies only on a substantial question of law, which the High Court must formulate; the appeal is heard on that question, and findings of fact are closed. The change deliberately narrowed second appeals to genuine questions of law.

Key terms decoded

Second appeal

A further appeal from an appellate decree (the decree of the first appellate court) — the second appeal in the chain, lying only to the High Court.

Decree passed in appeal

An appellate decree — the decree made by the court that heard the first appeal (under § 96).

Court subordinate to the High Court

The first appellate court (e.g. a District Court) whose appellate decree is challenged — one below the High Court in the judicial hierarchy.

Substantial question of law

A real, debatable question of law of some moment — not a settled point, and not a question of fact. It is the sole gateway to a second appeal.

Ex parte appellate decree

An appellate decree passed in a party’s absence. § 100(2): a second appeal lies from it too.

Memorandum of appeal

The document instituting the appeal. In a second appeal it must precisely state the substantial question of law (3).

Formulate the question

The High Court, if satisfied a substantial question of law arises, must frame it in writing (4) — the appeal is then confined to it.

Question not formulated (proviso)

The court keeps power to decide the appeal on another substantial question of law it did not formulate — but only for reasons recorded and if satisfied the case involves it.

The picture — the second-appeal gateway

The second appeal is a narrow door: an appellate decree rises to the High Court only if it carries a substantial question of law. The High Court formulates that question and decides on it; the facts found below stay shut — with one reserve, the proviso’s power to take up another such question for reasons recorded.

Section 100, part by part

1 Law only → HC
2 Ex parte
3 Memo states it
4 HC formulates
5 Heard on it · Proviso

Sub-section (1) — the core right: a second appeal lies to the High Court from an appellate decree of a subordinate court, only on a substantial question of law.

(1) The saving

Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force,

The right is the default — it yields only where the Code, or another law, expressly provides otherwise.

(1) The right

an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court,

A second appeal lies only to the High Court, from every appellate decree of a court subordinate to it.

(1) The gate

if the High Court is satisfied that the case involves a substantial question of law.

The sole gateway: the High Court must be satisfied the case involves a substantial question of law. No such question — no second appeal.

Sub-section (2) — an ex parte appellate decree is also open to a second appeal; the absence below does not forfeit it.

(2) Ex parte too

An appeal may lie under this section from an appellate decree passed ex parte.

A second appeal lies even from an ex parte appellate decree — one passed in a party’s absence. (It still needs a substantial question of law under (1).)

Sub-section (3) — the appellant must do the framing first: the memorandum of appeal must precisely state the substantial question of law.

(3) State the question

In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.

The appellant must identify and precisely state the substantial question of law in the memorandum — vague grounds will not do.

Sub-section (4) — the gate is the court’s to open: if satisfied a substantial question of law is involved, the High Court shall formulate it.

(4) Court formulates

Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.

Once satisfied, the High Court must frame the question in writing (“shall formulate”). The appeal is then confined to it.

Sub-section (5) — the hearing is on the formulated question; the respondent may argue it does not arise. The proviso keeps a reserve power to take up another such question, for reasons recorded.

(5) Heard on it

The appeal shall be heard on the question so formulated

The hearing is confined to the question the High Court formulated — not a roving re-hearing.

(5) Respondent may resist

and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:

The respondent is entitled to argue that the formulated question does not arise in the case — a built-in check on the gate.

Proviso (5)

A reserve power: the court may decide on another substantial question it did not formulate — but only for reasons recorded and if satisfied the case involves it. Substance is not lost to the framing rule.

How the parts work as one body

One narrow gateway, framed and heard

(1) The right

To the High Court, from an appellate decree — only on a substantial question of law.

→

(3) Appellant states it

The memorandum must precisely state that question.

→

(4) HC formulates — the hinge

If satisfied, the court frames the question; the appeal narrows to it.

→

(5) Heard on it

Decided on the formulated question; respondent may say it does not arise.

Two reserves: a second appeal lies even from an ex parte appellate decree (2); and the court may still take up another substantial question of law it did not formulate — for reasons recorded (proviso).

Read as one body, § 100 is a single narrow gateway: the right exists only for a substantial question of law → the appellant states it → the High Court formulates it → the appeal is heard on it — with the facts found below kept shut.

Connected provisions

Section 100 opens the second-appeal cross-heading (§§ 100–103). It follows the first appeal of § 96; bars a further appeal where one is barred by § 100A; and its procedure is Order XLII. The harmless-error rules of § 99/§ 99A still apply.

§ 99A ←Harmless-error rule for § 47 orders. (Previous section.)

§ 96 →First appeal from an original decree — the appeal that precedes a second appeal.

§ 100A →No further appeal where a Single Judge decides an appeal — LPA cut off (2002).

§ 103 →Power of the High Court to determine issues of fact in a second appeal.

⚖ Part VII MapPart VII — Appeals §§ 96–112.

Test yourself

1 A litigant loses the first appeal and wants to re-argue the facts in the High Court. Will a second appeal lie? — No — § 100 allows a second appeal only on a substantial question of law; findings of fact are not re-opened.

2 The High Court is satisfied a substantial question of law arises. What must it do before hearing? — Formulate that question (§ 100(4)); the appeal is then heard on the formulated question (§ 100(5)).

3 At the hearing the court sees a different substantial question of law it never formulated. Can it decide on it? — Yes — the proviso allows it, for reasons to be recorded, if satisfied the case involves that question.

Part VII · Appeals · Section 100 — Second appeal.