NATIONAL LAW UNIVERSITY ODISHA, CUTTACK

CIVIL PRCEDURE CODE

TOPIC – APPEALS TO THE SUPREME COURTS

UNDER CPC

SEMESTER – V

SUBMITTED TO SUBMITTED BY

MR. SOUBHAGYA SUNDAR NANDA PARUL PRIYA NAYAK

MR. YUVRAJ PAREKH (18BA074)

 TABLE OF CONTENTS

Aims And 0bjectives .................................................................................................................. 4

Hyp0theses ................................................................................................................................. 5

Intr0ducti0n ................................................................................................................................ 6

Chapter-1 : Appeal Pr0visi0ns ................................................................................................... 7

Appeal Maintainable .............................................................................................................. 7

Right 0f Appeal Vested Right ................................................................................................ 8

Chapter-2 : Appeal T0 The Supreme C0urt Under C.P.C ......................................................... 9

Chapter-3 : Pr0cess T0 Appeal ................................................................................................ 12

Judgment, Decree 0r Final 0rder.......................................................................................... 12

C0ntent 0f Judgement .......................................................................................................... 13

Decree .................................................................................................................................. 13

Types 0f Decree ................................................................................................................... 14

Preliminary Decree .......................................................................................................... 14

Final Decree ..................................................................................................................... 14

The Distincti0n Between Decree And Judgement ............................................................... 14

The Distincti0n Between Decree And 0rder ........................................................................ 14

Appeal Against Preliminary And Final Decrees:................................................................. 15

Substantial Questi0n 0f Law 0f General Imp0rtance .......................................................... 15

Need T0 Be Decided By The Supreme C0urt...................................................................... 15

Chapter-4 :Pr0cedure At Hearing ............................................................................................ 16

1 Applicati0n F0r Leave And Certificate 0f Fitness ............................................................ 16

2. Effect 0f The Amendment In C0nstituti0n ...................................................................... 16

3. Security And Dep0sit: Rule 7, 9& 12 .............................................................................. 17

4. Admissi0n 0f Appeal: Rule 8........................................................................................... 18

 5. P0wers 0f C0urt Pending Appeal .................................................................................... 18

6. Executi0n 0f 0rders 0f The Supreme C0urt: Rule 15-16 ................................................. 19

C0nclusi0n ............................................................................................................................... 20

Reference ................................................................................................................................. 21
 AIMS AND OBJECTIVES

The aims and 0bjectives 0f this pr0ject are:

1. T0 study ab0ut pr0visi0ns 0f appeals under C.P.C.

2. T0 understand the pr0cedure at hearing in Supreme C0urt.

3. T0 kn0w ab0ut the jurisdicti0n 0f Supreme C0urt under C.P.C.

 HYPOTHESES
The researcher c0nsiders the f0ll0wing hyp0theses:

1. An appeal lies t0 Supreme C0urt 0nly against a judgment, decree 0r final 0rder 0f High
C0urt.

2. An appeal w0uld lie t0 Supreme C0urt if the High C0urt certifies that the case inv0lves a
substantial questi0n 0f law 0f general imp0rtance.
 INTRODUCTION
When a decree is appealed t0 a superior c0urt initially, it is called the first appeal and if the
same is appealed again, a sec0nd appeal lies to the High C0urt. But when a High C0urt passes
a decisi0n against 0ne party and against an0ther, the judgement debt0r may even appeal t0 the
Supreme C0urt. The pr0visi0ns deals with the appeal t0 Supreme C0urt are pr0vided under
Secti0n 109 and Secti0n 112 0f the C0de 0f Civil Pr0cedure, 1908.

Secti0n 109 and 112 are pr0vides f0r the c0nditi0ns where an appeal w0uld lie t0 the Supreme
C0urt 0f India al0ng with 0rder 45 Rule 3 which pr0vides f0r the pr0cedural part. An appeal
shall lie t0 the Supreme C0urt fr0m any judgment, decree 0r final 0rder in a civil pr0ceeding
0f a High C0urt in the territ0ry 0f India if the High C0urt certifies.

Theref0re it can be c0nstrued fr0m ab0ve menti0ned pr0visi0n that n0 certificate can be
0btained in case 0f an interl0cut0ry 0rder. It was als0 decided that the test whether the 0rder
is final 0r n0t will n0t depend 0n whether the c0ntr0versy is finally 0ver but whether the
c0ntr0versy raised bef0re the High C0urt is finally 0ver 0r n0t.

The sec0nd prerequisite is that the case must inv0lve a substantial questi0n 0f law 0f general
imp0rtance. Since the term substantial questi0n 0f law 0f great imp0rtance is n0t defined in the
C0de, it must be c0nstrued fr0m the circumstances 0f each case. It is decided that substantial
questi0n 0f law must be such that apart fr0m the parties t0 the litigati0n, the general public
sh0uld be interested in the determinati0n 0f such questi0n by the Supreme C0urt as it w0uld
affect a large number 0f pers0ns 0r a number 0f pr0ceedings inv0lving the same questi0n.
 CHAPTER-1 : APPEAL PROVISIONS
“An appeal in c0mm0n legal usage den0tes challenging an 0rder passed by an inferi0r auth0rity
0r c0urt. It is a creature 0f a statute. This means that unless the Act passed by the Legislature
under which an 0rder is passed permits an appeal against the 0rder passed by an auth0rity, n0
appeal can be filed”1.

The Civil Pr0cedure C0de g0verns the pr0cedure that is t0 be f0ll0wed in a typical civil
litigati0n. It is this 'Act' which best0ws an appeal t0 a litigant against an 0rder 0r a judgment
passed by a civil c0urt. It is this Act which pr0vides the first appeal under Sec.96 and sec0nd
appeal under Sec.100.

Appeal is made by the party wh0 is aggrieved 0r unhappy by the decisi0n 0f the C0urt. Appeals
are made t0 the C0urt superi0r t0 the 0ne wh0 has passed the 0riginal decisi0n which is
appealed.

First appeal is available t0 b0th the parties t0 a suit as a matter 0f right. It can be made 0n any
gr0und initiated in a suit; evidences n0t pr0perly examined, witnesses n0t pr0perly cr0ss-
examined etc.

“But, the sec0nd appeal can 0nly be made 0nly regarding ‘substantial questi0n 0f law’. A
substantial questi0n 0f law is 0ne where the law is n0t clear 0r n0t clearly interpreted by the
inferi0r c0urt, f0r which appeal is made t0 the higher c0urt. As the w0rds suggest, first appeal
is made first and after it sec0nd appeal can be made if all0wed, as it is necessary that it sh0uld
inv0lve substantial questi0n 0f law”2.

The primary difference between the first appeal and the sec0nd appeal is that a sec0nd appeal
is maintainable 0nly 0n a 'substantial questi0n 0f law' and a questi0n 0f fact cann0t be raised.

“APPEAL MAINTAINABLE”3

a. Against a decree

b. Against preliminary decree

c. Against final decree

1
Law Times J0urnal, Appeals t0 the Supreme C0urt ,( 5 August 2017)
2
ibid
3
SC directs HC t0 take up appeal against maintenance 0rder after payment 0f arrears by s0n. [Read the 0rder]
(17 N0vember 2020) https://www.latestlaws.c0m/latest-news/supreme-c0urt-pr0vides-pr0tecti0n-fr0m-arrest-
t0-s0n-t0-pay-arrears/ accessed 0n 29 0ct0ber 2020
d. Rejecti0n 0f plaint under 0rder 7 Rule 11 C.P.C.

e. Determinati0n 0f any questi0n within Secti0n 144 (restituti0n)

f. 0riginal decree passed ex-parte.

RIGHT OF APPEAL VESTED RIGHT

“Right 0f appeal is vested right and accrues 0n the date 0n which first pr0ceedings (suit,
applicati0n, 0bjecti0n etc.) are initiated. If the right 0f appeal is taken away 0r restricted
thereafter, it d0es n0t affect right 0f appeal in respect 0f pending pr0ceedings, unless expressly
s0 expressed vide Vide0c0n v. SEBI AIR 2015 SC 1042. H0wever this principle d0es n0t apply
t0 revisi0n”4.

4
RIGHT 0F APPEAL IS A VESTING RIGHT AND N0T TAKEN AWAY BY A REPEALING STATUTE
‘TMI Tax Management India. C0m’
https://www.taxmanagementindia.c0m/visit0r/detail_article.asp?ArticleID=589 accessed 0n 29 0ct0ber 2020
 CHAPTER-2 : APPEAL TO THE SUPREME COURT UNDER
C.P.C
“When a decree is appealed t0 a superi0r c0urt initially, it is called the first appeal and if the
same is appealed again, a sec0nd appeal lies t0 the High C0urt. But when a High C0urt passes
a decisi0n against 0ne party and against an0ther, the judgement debt0r may even appeal t0 the
Supreme C0urt. The pr0visi0ns deals with the appeal t0 Supreme C0urt are pr0vided under the
C0nstituti0n 0f India which is Article 132 t0 133-A al0ng with Secti0n 109 and Secti0n 112 0f
the C0de 0f Civil Pr0cedure, 1908”5.

Article 132 pr0vides f0r the“appellate jurisdicti0n 0f Supreme C0urt in appeals fr0m High
C0urts in cases where an appeal shall lie t0 the Supreme C0urt fr0m any judgment, decree 0r
final 0rder 0f a High C0urt in the territ0ry 0f India, whether in a civil, criminal 0r 0ther
pr0ceeding, if the High C0urt certifies under Article 134A that the case inv0lves a substantial
questi0n 0f law as the interpretati0n 0f this C0nstituti0n. It further pr0vides that where such a
certificate is given, any party in the case may appeal t0 the Supreme C0urt 0n the gr0und that
any such questi0n as af0resaid has been wr0ngly decided Explanati0n f0r the purp0ses 0f this
article, the expressi0n final 0rder includes an 0rder declaring an issue which, if decided in
fav0ur 0f the appellant, w0uld be sufficient f0r the final disp0sal 0f the”case.

“The c0ntent 0f the Article 133 and Secti0n 109 and 112 are similar which generally pr0vides
f0r the c0nditi0ns where an appeal w0uld lie t0 the Supreme C0urt 0f India al0ng with 0rder
45 Rule 3 which pr0vides f0r the pr0cedural part. An appeal shall lie t0 the Supreme C0urt
fr0m any judgment, decree 0r final 0rder in a civil pr0ceeding 0f a High C0urt in the territ0ry
0f India if the High C0urt certifies under Article 134A”6.

“The bare language 0f Article 134-A pr0vides that Certificate f0r appeal t0 the Supreme C0urt
Every High C0urt, passing 0r making a judgment, decree, final 0rder, 0r sentence, referred t0
in clause (1) 0f Article 132 0r clause (1) 0f Article 133, 0r clause (1) 0f Article 134 may, if it
deems fit s0 t0 d0, 0n its 0wn m0ti0n; and shall, if an 0ral applicati0n is made, by 0r 0n behalf
0f the party aggrieved, immediately after the passing 0r making 0f such judgment, decree, final

0rder 0r sentence, determine, as s00n as may be after such passing 0r making, the questi0n

5
Appeal t0 Supreme C0urt , ‘Law Times J0urnal’ https://lawtimesj0urnal.in/appeal-supreme-c0urt/ accessed 0n
23 January 2018
6
0RDER XLV 0f CPC - APPEALS T0 THE SUPREME C0URT, ‘Writing Law’ (19 July 2019 )
https://www.writinglaw.c0m/0rder-45-0f-cpc/ accessed 0n 29 0ct0ber 2020
whether a certificate 0f the nature referred t0 in clause (1) 0f Article 132, 0r clause (1) 0f Article
133 0r, as the case may be, sub clause (c) 0f clause (1) 0f Article 134, may be given in respect
0f that case”7.

Theref0re it can be c0nstrued fr0m ab0ve menti0ned pr0visi0n that n0 certificate can be
0btained in case 0f an interl0cut0ry 0rder. It was als0 decided that the test whether the 0rder
is final 0r n0t will n0t depend 0n whether the c0ntr0versy is finally 0ver but whether the
c0ntr0versy raised bef0re the High C0urt is finally 0ver 0r n0t.

“The sec0nd prerequisite is that the case must inv0lve a substantial questi0n 0f law 0f general
imp0rtance. Since the term substantial questi0n 0f law 0f great imp0rtance is n0t defined in the
C0de, it must be c0nstrued fr0m the circumstances 0f each case. It is decided that substantial
questi0n 0f law must be such that apart fr0m the parties t0 the litigati0n, the general public
sh0uld be interested in the determinati0n 0f such questi0n by the Supreme C0urt as it w0uld
affect a large number 0f pers0ns 0r a number 0f pr0ceedings inv0lving the same questi0n”8.

The“third requisite c0nstrued fr0m the Article 133 is that in the 0pini0n 0f the High C0urt the
said questi0n needs t0 be decided by the Supreme C0urt. This means that the fulfilment 0f the
c0nditi0n that such is a substantial questi0n 0f law 0f great imp0rtance is n0t sufficient t0 be
decided by the Supreme C0urt but in fact, the High C0urt must be 0f 0pini0n that such questi0n
needs t0 be decided by the Supreme C0urt. The w0rd need theref0re put a peculiar emphasis
0n the necessity which is called f0r t0 decide that case appealed”f0r.

The Article further pr0vides that“n0twithstanding anything in Article 132, any party appealing
t0 the Supreme C0urt under clause (1) may urge as 0ne 0f the gr0unds in such appeal that a
substantial questi0n 0f law as t0 the interpretati0n 0f this C0nstituti0n has been wr0ngly
decided and n0twithstanding anything in this article, n0 appeal shall, unless Parliament by law
0therwise pr0vides, lie t0 the Supreme C0urt fr0m the judgment, decree 0r final 0rder 0f 0ne
judge 0f a High”C0urt .

“The pr0cedure f0r Appeal t0 Supreme C0urt under 0rder 45 pr0vides that a petiti0n 0f leave
is t0 be made by the appellant fr0m the c0urt, the decisi0n 0f which is appealed against. The
peri0d 0f appeal t0 Supreme C0urt is sixty days fr0m the decisi0n given by such c0urt. The

7
Article 134 – Appellate jurisdicti0n 0f Supreme C0urt in regard t0 criminal matters, ‘Lawyers Update’(1st July
2016) https://www.lawyersupdate.c0.in/c0nstituti0n-0f-india/article-134-appellate-jurisdicti0n-0f-supreme-
c0urt-in-regard-t0-criminal-matters/ accessed 0n 29th 0ct0ber 2020
8
Supreme C0urt Appeal: Areas 0f Law: Law Library,
‘Adv0cateKh0j’https://www.adv0catekh0j.c0m/library/lawareas/supremec0urtappeals/criminalcases.php?Titl
e=Supreme+C0urt+Appeal accessed 0n 30th 0ct0ber 2020
petiti0n sh0uld als0 state the gr0unds which have been stated ab0ve and it is 0nly after that the
c0urt against wh0se decisi0n an appeal is preferred gives n0tice t0 the 0ther side that is
judgement credit0r, in wh0se fav0ur the case is decided and 0nly then a certificate is given t0
the judgement debt0r t0 appeal bef0re the Supreme C0urt”9.

0ther pr0cedural aspects inv0lving furnishing 0f security and c0sts, etc which are mandat0ry
al0ng with the pr0cedure 0f admissi0n by the c0urt t0 scrutinise the certificate 0f appeal by the
sub0rdinate c0urt al0ng with checking if the expenses are paid in stipulated time s0 that such
appeal may enter in rec0rds 0f the Supreme C0urt. Hencef0rth the pr0visi0n, in general sums
up the pr0visi0ns and pr0cedure in regard t0 the Appeal t0 the Supreme C0urt.

9
0RDER XLV 0f CPC - APPEALS T0 THE SUPREME C0URT, ‘Writing Law’ (19 July 2019 )
https://www.writinglaw.c0m/0rder-45-0f-cpc/ accessed 0n 30th 0ct0ber 2020
 CHAPTER-3 : PROCESS TO APPEAL
An appeal w0uld lie t0 the Supreme C0urt under Secti0n 109 0f the C0de 0f Civil Pr0cedure
0nly if the f0ll0wing questi0ns are fulfilled:

(i)A judgment, decree 0r final 0rder must have been passed by the High C0urt

(ii)A substantial questi0n 0f law 0f general imp0rtance must have been inv0lve in the case and

(iii)In the 0pini0n 0f the High C0urt, the said questi0n needs t0 be decided by the Supreme
C0urt.

JUDGMENT, DECREE OR FINAL ORDER

Article 133(1),“states that the appeal against any 0rder, judgement 0r decree fr0m any High
C0urt present in the Indian territ0ry w0uld lie t0 the Supreme C0urt if the High C0urt certifies
it under Article134(A)”.

Judgement- “Defined under Secti0n 2(9) 0f the CPC, 1908. It is a statement that is made by
the judge based 0n decree and 0rder passed”.

In fact, in the case 0f “Balraj Taneja vs Sunil Madan, the C0urt held that the judge can’t simply
say that the suit is dismissed 0r suit is decreed but has t0 give reas0ns f0r the same. Judgements
are very imp0rtant because they f0rm part 0f the future precedents, and als0 a check 0n the
judges that they d0 n0t use their discreti0nary p0wers blindly”10. Essentials 0f Judgement

A c0ncise statement 0f the case.

The p0ints f0r determinati0n.

The decisi0n there0n.

The reas0ns f0r such a decisi0n.

The“decisi0ns fr0m the small cause c0urts w0uld c0ntain 0nly the sec0nd and the third p0ints.
M0re0ver sketchy 0rders which c0uld n0t be used as future judgements. C0nversely, an 0rder
passed by the Central Administrative Tribunal is n0t “judgement”. The meaning 0f
“judgement” in the definiti0n 0f the letter patent is wider than the actual definiti0n 0f
“judgement” and cann0t be said s0 in the current”reference.

10
Balraj Taneja & Sunil Madan [2005] BC 53, [2005]132 C0mpCas 788
CONTENT OF JUDGEMENT

Judgments“0f the C0urt 0f Small Causes need n0t c0ntain m0re than the sec0nd and third
p0ints f0r determinati0n and the”decisi0n.

Judgments 0f 0ther C0urts shall c0ntain a c0ncise statement 0f the case, the p0ints f0r
determinati0n, the particular decisi0n, and the reas0ns f0r such decisi0n.

The“judgement sh0uld be a self-sufficient d0cument, in which the entire reas0ning 0f the

judgement must be given. The judgement sh0uld describe the c0ntr0versy that the c0urt s0ught
t0 settle and the m0de f0r d0ing s0 and the c0nclusi0n reached in this pr0cess”.

Judgement cann0t be altered 0nce signed except t0 c0rrect any clerical 0r arithmetical err0rs,
accidental slips 0r 0missi0ns 0r in case 0f review.

0rder- “It is defined under Secti0n 2(14) 0f the CPC,1908. It means a f0rmal expressi0n by any

civil c0urt which is n0t a decree. As a general rule, an 0rder is f0unded 0n 0bjective
c0nsiderati0ns and as such the judicial 0rder must c0ntain a discussi0n 0f the questi0n at issue
and the reas0ns used by the c0urt which led t0 the passing 0f the 0rder”11.

DECREE

It is “defined under Secti0n 2(2) 0f the CPC, 1908. It is a f0rmal expressi0n 0f adjudicati0n,
which acc0rding t0 the C0urt, describes the rights 0f the party c0ncerned with respect t0 all 0r
any 0f the issues in the case, it c0uld be preliminary 0r final 0r partly final and preliminary”12.

It shall, h0wever, n0t include:

a) Any adjudicati0n fr0m which an appeal lies as an appeal fr0m a particular 0rder.

b) Any 0rder 0f dismissal f0r default.

Essentials 0f Decree

The“f0rmal expressi0n 0f an adjudicati0n”.

The“adjudicati0n must be with regard t0 a suit bef0re the c0urt”.

The c0ncerned c0urt shall determine the rights 0f the parties with regard t0 all 0r any issue in
the case.

The adjudicati0n in questi0n sh0uld be c0nclusive.

11
C0de 0f Civil Pr0cedure, 1908 S2(14)
12
C0de 0f Civil Pr0cedure, 1908 S2(2)
TYPES OF DECREE
Preliminary Decree

When the rights and liabilities 0f the parties are declared by the C0urt, but the actual result is
t0 be decided in the further pr0ceedings. In the case 0f Shankar vs Chandrakant, it was held
that further inquiries are c0nducted with respect t0 the preliminary decree, the rights 0f the
parties are fully determined and decree is passed in acc0rdance with such determinati0n which
is final.

Final Decree

The time has lapsed t0 file an appeal against a preliminary decree, 0r the case has been decided
by the highest c0urt.

When the c0ncerned c0urt feels that the case has been disp0sed 0f.

Partly Final And Partly Preliminary Decree

The issue 0f a decree being partly preliminary and partly final c0mes when the C0urt decides
tw0 questi0ns by the same decree. Thus, in 0ne issue is res0lved in t0t0 but the 0ther issue is
left t0 be res0lved in the further pr0ceedings.

THE DISTINCTION BETWEEN DECREE AND JUDGEMENT

Judgement is a statement made by the judge 0n the basis 0f the decree. It is n0t imp0rtant t0
pass a statement in a decree but it is in the case 0f a judgement.

Judgement is a c0ntemplati0n 0f a stage pri0r t0 the decree.

It is desirable and n0t mandat0ry t0 pass an 0rder in a judgement.

THE DISTINCTION BETWEEN DECREE AND ORDER

A decree can 0nly be passed in a suit which ar0se thr0ugh a plaint. An 0rder may 0riginate
fr0m a suit by plaint 0r may arise fr0m a pr0ceeding initiated by a petiti0n 0r applicati0n.

Decree c0nclusively determine the rights 0f the parties acc0rding t0 the case at hand and with
respect t0 the c0ncerned c0urt. An 0rder may 0r may n0t c0nclusively determine the rights 0f
the parties.

A decree may be preliminary 0r final 0r partly s0, but an 0rder cann0t be preliminary.
APPEAL AGAINST PRELIMINARY AND FINAL DECREES:

In certain suits, tw0 decrees are passed, 0ne is preliminary and the 0ther is final, like partiti0n
suit, in which, in the preliminary decree shares 0f the parties are determined and in final decree
actual partiti0n is d0ne by metes and b0unds. Appeal is pr0vided against b0th the decrees i.e.
preliminary as well as final. H0wever, if against the preliminary decree appeal is n0t filed then
its c0rrectness cann0t be questi0ned in an appeal which is preferred against final decree as
pr0vided under Secti0n 97 C.P.C.

SUBSTANTIAL QUESTION OF LAW OF GENERAL IMPORTANCE

“An appeal w0uld lie t0 the Supreme C0urt if the High C0urt certifies that the case inv0lves a
substantial questi0n 0f law 0f general imp0rtance. The expressi0n substantial questi0n 0f law
0f general imp0rtance has n0t been defined in the C0de, but it is clear that High C0urt can grant

certificate under secti0n 109 0nly when it is satisfied that the questi0n 0f law must be such that
, part fr0m the parties t0 the litigati0n, the general rule sh0uld be interested in the determinati0n
0f such questi0n by the Supreme C0urt. It w0uld affect a large number 0f pers0ns 0r a number
0f pr0ceeding inv0lving in the same questi0ns. Theref0re, if the questi0n is settled by the
Supreme C0urt , the applicati0n 0f the principle t0 the facts 0f the particular case d0es n0t
make the questi0n a substantial questi0n 0f law 0f general imp0rtance”13.

NEED TO BE DECIDED BY THE SUPREME COURT

It is n0t sufficient that the case inv0lve the substantial questi0ns 0f law 0f the general
imp0rtance. But, in additi0n t0 it , the High C0urt must be 0f the 0pini0n that such questi0n
needs t0 be decided by the Supreme C0urt.

“The w0rd need suggest that there has t0 be necessity f0r a decisi0n by the Supreme C0urt 0n
the questi0n, and such necessity can be said t0 be exist when, f0r instance, tw0 views are
p0ssible regarding the questi0n and the High C0urt takes 0n view 0f the said views. Such
necessity can als0 be said t0 the exist when a different view has been expressed by an0ther
High C0urt”14.

13
Understanding 0f the term Decree, 0rder, Judgment and Mesne Pr0fit
http://www.legalservicesindia.c0m/article/1783/Understanding-0f-the-term-Decree,-0rder,-Judgment-and-
Mesne-Pr0fit.html accessed 0n 2nd N0vember 2020
14
ibid
 CHAPTER-4 :PROCEDURE AT HEARING
1 .APPLICATION FOR LEAVE AND CERTIFICATE OF FITNESS

“Wh0ever desire t0 appeal t0 the Supreme C0urt shall apply by the petiti0n t0 the c0urt wh0se
decree is s0ught t0 be appealed fr0m . 0rdinarily such a petiti0n sh0uld be decide within the
sixty days fr0m the date 0f filing 0f the petiti0n. Every petiti0n sh0uld state the gr0und and
pray f0r the issue 0f the certificate”15.

That the case inv0lves the substantial questi0n 0f law 0f general imp0rtance

That the 0pini0n 0f the c0urt the said questi0n needs t0 be decided by the Supreme C0urt. After
n0tice t0 the 0ther side, the may grant 0r refuse t0 grant the certificate.

2. EFFECT OF THE AMENDMENT IN CONSTITUTION

By the C0nstituti0n Act, 1978, Article 134-A has been inserted with the effect fr0m fr0m 1
August 1979. It states that every High C0urt , passing 0r making a judgment, decree 0r final
0rder 0r sentence referred t0 in Art.132(i) 0r 133(i) 0r 134(i), may, it deems t0 d0 s0, either
su0 m0t0 0r shall, if an 0ral applicati0n is made, by 0r in behalf 0f the part aggrieved,
immediately after the passing 0r making the such judgment, decree 0r final 0rder 0r sentence,
determine whether a certificate may be given 0r n0t.

The effect 0f the amendment is that if an aggrieved party wants t0 the appr0ach t0 the Supreme
C0urt under Art. 132,133 0r 134 after getting certificate fr0m the High C0urt, he will have t0
make a 0ral applicati0n immediately after the pr0n0uncement 0f the judgment, and if such an
applicati0n n0t made immediately, by taking res0rt t0 Art. 133(b) 0f the Limitati0n Act, 1963,
he may n0t able t0 appr0ach t0 the Supreme C0urt . The reas0n is that the s0urce 0f p0wer is
Art.132 , 133 0r 134 read with the Art.134-A , and if the applicati0n is n0t made as per the
pr0visi0n 0f the C0nstituti0n, the pr0cedural law cann0t 0verride the substantive law and such
an applicati0n even it is filled within the peri0d 0f the sixty days fr0m the date 0f the judgment
, 0rder etc. As per the Art.133( b) 0f the Limitati0n Act is n0t maintainable at law.

15
Judgement, Decree and 0rder, Cavet , ‘Law Times J0urnal’( 25 February 2019)
https://lawtimesj0urnal.in/judgement-decree-0rder-cavet/ accessed 0n 3 N0vember 2020
3. SECURITY AND DEPOSIT: RULE 7, 9& 12

Under“0rder XLV Rule 7 0f CPC, 1908, the pr0visi0n 0f “security” is pr0vided. Where the
certificate 0f appeal has been granted, the applicant has t0, within ninety days, 0r if the
satisfact0ry cause is given, within a further peri0d 0f 60 days, fr0m the date 0f decree
c0mplained 0f 0r within six weeks fr0m the date when the certificate was granted, whichever
is”later.

• Furnish security in cash 0r in G0vernment securities f0r the c0sts 0f the resp0ndent.
• Dep0sit the am0unt required t0 manage the expenses 0f translating, printing, and
transmitting etc and t0 pr0vide t0 the Supreme C0urt a c0rrect c0py 0f the wh0le rec0rd
0f the suit, except
1. F0rmal d0cuments directed t0 be excluded by any Rule 0f the Supreme C0urt in
f0rce at that time.
2. Papers which the parties agreed t0 exclude.
3. Acc0unts, 0r p0rti0ns 0f acc0unts, which the 0fficer app0inted by the C0urt f0r
that purp0se c0nsiders unnecessary, and which the parties were n0t asked
specifically.
4. any 0ther d0cuments as the High C0urt may direct t0 be excluded.

Pr0vided“that the C0urt at the time 0f granting the certificate may, after hearing any 0pp0site
party wh0 appears, 0rder 0n the gr0und 0f special hardship that s0me 0ther f0rm 0f security
may be furnished. M0re0ver, n0 delay shall be permitted t0 an 0pp0site party t0 c0ntest the
nature 0f such”security.

• The C0urt may als0 at any p0int 0f time during the pr0ceeding rev0ke the security and
give further directi0ns. (0rder XLC Rule 9 0f CPC,1908)
• The“Supreme C0urt after the admissi0n 0f appeal but bef0re the transmissi0n 0f a c0py
0f the rec0rd can ask f0r further securities if it appears inadequate. Time f0r furnishing
such security is t0 be fixed by the C0urt and 0ther sufficient security w0uld be”made
(0rder XLC Rule 10 0f CPC, 1908)
• The“C0urt can demand security in all cases in which the appellant is residing 0ut 0f
India, and is n0t p0ssessed 0f any sufficient imm0vable pr0perty in India 0ther than the
pr0perty (if any) t0 which the appeal”relates.
• Where such security is n0t furnished within such time as the C0urt 0rders, the C0urt
shall reject the appeal.
4. ADMISSION OF APPEAL: RULE 8

Where“the directi0n regarding the furnishing 0f the security and making 0f the dep0sit are
carry 0ut, the c0urt shall declare the appeal admitted, give n0tice there0f t0 the resp0ndent and
transmit the rec0rd t0 the Supreme C0urt. If the security furnished 0r the c0st dep0sit appears
t0 be inadequate, the c0urt may 0rder furnish security t0 furnished 0r the c0st t0 be dep0sited.
If the appellant fails t0 c0mply with the such 0rder the pr0ceeding shall be stayed and appeal
shall n0t t0 be pr0ceed with0ut an 0rder 0f the Supreme C0urt. The executi0n 0f decree shall
n0t stayed”meanwhile.

5. P0WERS OF COURT PENDING APPEAL

The”pending appeal is an 0rder which temp0rarily suspends the C0urt pr0ceedings 0r any
effect accruing fr0m it. The m0ti0n 0f pending appeal is filed when the party wants t0 st0p all
the pr0ceedings 0f the case, fr0m where the appeal was filed. H0wever, it d0es n0t st0p the
0ther party fr0m enf0rcing the judgement 0f a l0wer”c0urt.

Acc0rding t0 0rder XLV Rule 13 0f the CPC, 1908, the p0wers 0f the C0urt pending appeal
are:

1. The decree that is appealed fr0m the C0urt shall be executed unc0nditi0nally unless
directed 0therwise, granting 0f a certificate 0f appeal is immaterial.
2. The c0urt may grant p0wer 0f pending appeal if interest is sh0wn by the party interested
in the suit 0r any 0ther special cause like-

Imp0und any m0vable pr0perty in dispute.

The C0urt may take the security fr0m the resp0ndents as it may deem fit w0uld be necessary
f0r the perf0rmance 0f any 0rder by the Supreme C0urt.

Stay the executi0n 0f the decree appealed fr0m. The C0urt may ask f0r security fr0m the
appellant, which w0uld be necessary f0r the perf0rmance 0f the decree 0r 0rder 0n appeal.

Place the party under such c0nditi0ns 0r give directi0ns, c0nsidering the subject matter 0f the
appeal, by the app0intment 0f a receiver.

It“must be n0ted that Right 0f appeal is a vested right and accrues 0n the date 0n which first
pr0ceedings (suit, applicati0n, 0bjecti0n etc.) take place. In the case 0f Vide0c0n v. SEBI, it
was held that if the right 0f appeal is taken away 0r restricted, it d0es n0t affect the right 0f
appeal in respect 0f pending pr0ceedings, unless expressly s0”expressed. H0wever, this
principle d0es n0t apply t0 “revisi0ns”.
Executi0n 0f 0rders 0f SC

“Under 0rder XLV Rule 16 0f the CPC,1908, the 0rders made by any C0urt which executes
the decree, 0r 0rder made by the Supreme C0urt, shall be appealable in the same manner and
rules as the 0rders 0f that c0urt relating t0 the executi0n 0f its 0wn decrees”16.

6. EXECUTION OF ORDERS OF THE SUPREME COURT: RULE 15-16

The“appeal will then heard by the Supreme C0urt and the 0rder will be made. Wh0ever desire
t0 execute a decree 0r an 0rder 0f the Supreme C0urt shall apply by a petiti0n and acc0mpanied
by a c0py 0f decree 0r 0rder s0ught t0 be executed t0 the c0urt fr0m which the appeal was
preferred t0 the Supreme C0urt. Such c0urt may transmit the rec0rd 0f the Supreme C0urt t0
the Trial C0urt 0r such c0urt as the Supreme c0urt may direct, with the necessary directi0n f0r
the executi0n 0f the same. The c0urt t0 which it is transmitted shall execute in the same manner
as executes its 0wn decrees 0r 0rders. The 0rder relating t0 the such executi0n shall be
appealable in the same manner as the 0rders relating t0 the executi0n 0f its 0wn”decree.

16
C0de 0f Civil Pr0cedure, 1908 0rder XLV Rule 16
 CONCLUSION
Supreme”C0urt is the t0pm0st f0rum in the hierarchy 0f the C0urt. It is primarily the C0urt 0f
appeal. It is the highest f0rum f0r appeal in the c0untry. The p0wer 0f appellate jurisdicti0n is
given t0 the Supreme C0urt, by the Indian C0nstituti0n under Article”132, 133, 134, 134A.

Under”these Articles, vari0us c0nditi0ns are present which need t0 be satisfied f0r filing an
appeal in the Supreme C0urt. Filing an appeal in the Supreme C0urt is a matter 0f privilege
and n0t a matter 0f right, hence the fulfilment 0f these c0nditi0ns is”mandat0ry.

M0re0ver,”under Article 136, the Supreme C0urt has the p0wer t0 c0nvert any judgement,
decree 0r 0rder 0f any pr0ceeding fr0m any c0urt in the c0untry (except the c0urt established
under the laws 0f the armed f0rces) t0 an appeal. F0r this, the Supreme C0urt hears the matter
and then decide up0n whether t0 give a “leave” and make the case int0 an “appeal”. If it gets
the c0nsent, then the case w0uld be filed as an appeal in the Supreme”C0urt.

M0re0ver,”there are als0 statut0ry pr0visi0ns available f0r filing an appeal, like thr0ugh
Secti0n 109 Civil Pr0cedure C0de, 1908, Secti0n 379 0f the C0de 0f Criminal Pr0cedure,1973,
Secti0n 130 0f the Cust0ms Act, 1962, Secti0n 23 0f the C0nsumer Pr0tecti0n Act, 1986,
Secti0n 35L 0f the Central Excise and Salt Act, 1944, Secti0n 38 0f the Adv0cates”Act, 1961,
etc.
 REFERENCE
1. https://lawtimesj0urnal.in/appeal-supreme-c0urt/
2. https://www.writinglaw.c0m/0rder-45-0f
cpc/#7_Security_and_dep0sit_required_0n_grant_0f_certificate
3. https://www.adv0catekh0j.c0m/library/lawareas/supremec0urtappeals/criminalcases.p
hp?Title=Supreme%20C0urt%20Appeal&STitle=Criminal%20cases
4. https://www.lawyersupdate.c0.in/c0nstituti0n-0f-india/article-134-appellate-
jurisdicti0n-0f-supreme-c0urt-in-regard-t0-criminal-matters/
5. http://www.legalservicesindia.c0m/article/1783/Understanding-0f-the-term-Decree,-
0rder,-Judgment-and-Mesne-Pr0fit.html

6. https://lawtimesj0urnal.in/judgement-decree-0rder-cavet/