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CPC, 1908 · Part VII · Appeals · Appeals to the Supreme Court (§§109–112)

Section 109 — When appeals lie to the Supreme Court

The top of the ladder. Subject to the Constitution (Chapter IV of Part V) and the Supreme Court’s rules, an appeal lies to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court — but only if the High Court certifies two things: (i) the case involves a substantial question of law of general importance; and (ii) that question, in the High Court’s opinion, needs to be decided by the Supreme Court.

§ 109

How to read Section 109

The apex civil appeal

An appeal lies to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court — the Code’s gateway to the apex court.

(i) A question of general importance

The High Court must certify that the case involves a substantial question of law of general importance — not merely important to the parties.

(ii) Fit for the Supreme Court

And that, in the High Court’s opinion, the question needs to be decided by the Supreme Court. Both limbs of the certificate are required.

The bare Act

Section 109 · verbatim (substituted 1973)

Subject to the provisions in Chapter IV of Part V of the Constitution and 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.

→ Constitutional source: Art. 133 (civil appeals) read with Art. 134A (certificate); Supreme-Court appeal procedure: Order XLV. Apart from this certified route, the SC’s discretionary special leave (Art. 136) stands untouched.

1. The present § 109 was substituted for the old section by Act 49 of 1973, s. 2 (w.e.f. 29-11-1973).

Why § 109 was recast in 1973

From a value test to a question-of-law certificate

The old § 109 let a civil appeal reach the Supreme Court largely on the value of the subject-matter (the ₹20,000 line of the now-omitted § 110) and allied Article 133 grounds. The Constitution (30th Amendment) Act, 1972 removed that value test from Article 133; Act 49 of 1973 then recast § 109 to match — the gateway is now a High Court certificate that the case raises a substantial question of law of general importance that needs the Supreme Court’s decision. This is why § 110 (value of subject-matter) now stands omitted.

Key terms decoded

Chapter IV of Part V of the Constitution

Articles 132–141 — the Supreme Court’s appellate and allied jurisdiction. § 109 operates subject to them (esp. Art. 133).

Rules made by the Supreme Court

The Supreme Court’s own rules on appeals from the courts of India — which also govern how the appeal is brought.

Judgment, decree or final order

The High Court decisions from which a § 109 appeal may lie — a final order (not a mere interlocutory one) in a civil matter.

Civil proceeding

A proceeding of a civil nature — § 109 is the civil gateway (criminal appeals to the SC run under Art. 134).

The High Court certifies

The appeal turns on the High Court granting a certificate (under Art. 134A) that the two conditions are met — the HC is the gatekeeper.

Substantial question of law of general importance

A serious legal question whose answer matters beyond the parties — of importance to the law generally, not just to this case.

Needs to be decided by the Supreme Court

The second limb: the High Court must think the question requires the apex court’s authoritative decision.

Special leave (Art. 136)

The Supreme Court’s discretionary power to grant leave to appeal from any court — a separate route that survives even without a § 109 certificate (saved by § 112).

The picture — the certified route to the apex court

§ 109 is the certified staircase to the Supreme Court: a High Court’s civil judgment, decree or final order climbs only if the High Court itself certifies a substantial question of law of general importance that needs the apex court’s decision — all under the Constitution and the Court’s rules. Where no certificate is given, only the discretionary door of special leave (Art. 136) remains.

Section 109, part by part

Subject to the Constitution & SC rules

Subject to the provisions in Chapter IV of Part V of the Constitution and such rules as may, from time to time, be made by the Supreme Court regarding appeals from the Courts of India,

The right is framed by the Constitution (Arts. 132–141) and the Supreme Court’s rules — the Code yields to both.

And the provisions hereinafter

and to the provisions hereinafter contained,

— and to the further provisions of the Code that follow (e.g. the savings in § 112).

The right

an appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court,

An appeal lies to the Supreme Court from a High Court’s judgment, decree or final order in a civil proceeding.

The certificate condition

if the High Court certifies—

But only on a High Court certificate (granted under Art. 134A) attesting the two matters below.

(i) Of general importance

that the case involves a substantial question of law of general importance; and

First limb: a substantial question of law whose importance reaches beyond the parties — of general importance.

(ii) Needs the SC’s decision

that in the opinion of the High Court the said question needs to be decided by the Supreme Court.

Second limb: the High Court must be of the opinion that the question needs to be decided by the Supreme Court. Both limbs are essential.

Connected provisions

Section 109 opens appeals to the Supreme Court (§§ 109–112). It rests on Article 133 (civil appeals) with the Article 134A certificate, and is read with the savings in § 112 (which preserve the SC’s Art. 136 special leave and the Code’s non-interference with its powers). § 110 (value of subject-matter) and §§ 111/111A now stand omitted.

§ 108 ←Procedure carried into second appeals & order-appeals. (Previous section.)

§ 112 →Savings — preserves the SC’s Art. 136 powers & its rules.

§ 100 →The second appeal — also turns on a substantial question of law (in the HC).

§ 96 →The first appeal — where the ladder begins.

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

Test yourself

1 A losing party wants to appeal a High Court’s civil decree to the Supreme Court under § 109. What must it first obtain? — A High Court certificate — that the case involves a substantial question of law of general importance, and that it needs to be decided by the Supreme Court.

2 The question of law matters greatly to the parties but raises no issue of general importance. Will § 109 lie? — No — limb (i) requires general importance, not mere importance to the parties.

3 The High Court refuses a certificate. Is the Supreme Court wholly shut out? — No — the party may still seek discretionary special leave under Art. 136 (saved by § 112).

Part VII · Appeals · Section 109 — When appeals lie to the Supreme Court.