Chapter6

Appeals to Supreme Court

.ahbeal shall lie to the Supreme Court

ee Or final order passed by a High Courtfrom casejudgment,
if theany invoves
Substantial question of law of general importance."

SYNOPSIS

1. Ceneral .
. . S89 (b) Limitation 592
Section 109, Order 45 (c) Effect of amendment in
2. Conditions:
Rule 3
. , 590 Constitution.... S92

Jndgment, decree or final order . 590 (d) Security and deposit: Rules 7,
Substantial question of law of 98 12. . 592
S90 e) Admission of appeal: Rule 8... . S93
eeneralimportance. .. .

Need to be decided by Supreme (6) Powers of court pending appeal 593

i 591 (g) Execution of orders of Supreme
Court **
3.Procedure at hearing . . . . . . . . . . . 391 Court: Rules 15-16..... *°**
.593

and 4. Appeals under Constitution... .... 594

a) Application for leave
'**
certihcate of fhtness ..... 591

1. GENERAL

Appeals to the Supreme Court are governed by provisions of the Articles 132,
of the Constitution of India with regard to civil matters.
133 and 134-A an appeal shall lie
to the
to the provisions of the Constitution,
ubject ordernaciyilprocecd
preme Courtfrom any judgment, decree orhnal
ng of a High Court, ifthe High Courtcertifies that
The case involves a substantial.question.of
law.ofgeneralimportänce
and needs to be decided
said question
the opinion of the High Courtthe
by the Supreme Court.'
1. Ss.
109, I12.
 to Supreme Court Procedure at hearing 591
Appeals
588 Ch
Sections 1o9 and 112 ead with Order 45 with
deal with
appeals to t
aw

f t such questiona by
q u e s t i o
the Supreme Court, e.g., it would affect
such
Court. dhe Sup Letermination

large r
number
o

of
persons
or.
number of proceedings invoving the same
if the question is settled by
the Supreme Court, the
the facts of a particular case does not make
o n . ' Therefore,

CONDITIONS: SECTION 109, ORDRI ER 45 principle to

under SectionRULE 33
2. of the of law of general importance.
lie o the Supren Court elicat
pplic
ation
uestion a
substantial question
a
would
An appeal
only if the following
conditions a r e fulfitled: tog of t
by Supreme Court
t h e

be decided
judgment, decree
or
hnal order must have hea. Cot Need to
) a
passed by
that
e case involves a substantial question of law of gen-

importance must havethe Hih

Court:
but, in addition to it, the High Court must be of the opin-
sufficient

substantial question or law or general importar tisnot

not Suce.
(i) a eral
importa

needs
r to be decided by theSupreme Court. The wordd
involved in the case; and such
question

of the High Lourt, the Aqueee

said
t
iont hsuggests
a that 1 therehasto be anecessity for a decision by the Supreme
( in the
decided
opinion
by the Supreme Court. guestiOn needs R eeds he question,
and said
such a necessity can be
the question and the High
exist
to for
when,
Court
COurtwo views are possibleregarding
be said to exist
instanceiew of thesaid-views. Such a necessity can also Court
order
( Judgment, decree or final akes ifferent view has beenexpressed by another High
when a dift

An appeal lies to the Supreme Court only against a iudon

final order of the High Court. Ajudgment, decree or finadece 3. PROCEDURE AT HEARIN
which an appeal can be preferred to the Supreme Court mn cree or
purports to put an end
ust be onew
to the litigation between the parties
agains for leave and certificate of fitness
N
can be granted in respect of an interlocutory_order The tOCerie which a Application

Court shallapply by apetition

order is final or not will not depend on whether the contro est whetherthe evet desires appeal to the Supreme
to

We court whose decree is sought to be appealed from.' Ordinarily, such

over, but uhether the controversy raised before the Highroversy
Co SLnalyl within sixty days from the date of filing of the
erition should bedecided
Over or not."
netition. Every petitionshould state the groundsof appeal pray for
and the
emphasiS supplied e f acertificate(ithat thecase involvesa substantialquestionof
law of
i) Substantial question of law of general
importance oeneral importance; and ) that in the opinion of the courtthe said ques
rion needs to be decided by the Supreme Court." After notice to the other
Anappeal would lie to the Supreme Court it the High Court certifer side, the court may 8rant
or retuse to grant the certificate.
the case involves a substantial question of law
of general importance. The
expression substantial question of law of general 1mportance has not been
defined in the Code, but it is clear that the High
icate under Section 109 only when it is
Court can grant certif
satished that the question of la
invoived in the case is not only substantial but also ot general importance. 1962 SC 1314 at p
In other words, the substantial question of law S. Chunilalv. Mehta and Sons Ltd. Century Spg. & Mfg. Co. Ltd, AIR
v.

Ltd. v. Union of India,

must be such that, apart 1318: 1962 Supp (3) SCR 549 at pp. 557-58; Mabindra Mahindra
from the parties to the litigation, SBI v. N. Sundara SEE822
Money, (1976}1 824. afp.
the general publicshould be interested in (1979) 2 SCC 529 at pp. 550-51;
6. Chunlal V. Mehta and Sons Ltd. v. Century Spe. & Mfs Co. Ld, AIR 1962 SC 1314
Mabindra Mabindra Ltd. v. Union of India, (1979) 2 SCC 529 at pp sso-sT SBI v. N.
2. Sundara Money, (1976) 1 SCC 822 at p. 824 Pankaj Bhargava v. Mobinder Nath, (1991) 1
Jethanand ó Sons v. State of U.P, AIR 1961
SC.794:atp. 796: (1961) 3 SCR 754: Ramesh
V. Gendalal Motilal Patni, AIR 1966 SC 1445 at p. 1449: (1966) 3 SCR sCC 556 atp.563; For detailed discussion and casé láw, ie, Authors Code of Civid Procedare
discussion and case law, see, Authors' Code 198. For detaled Lawyers' Edn.) Vol. II at pp. so9-14
of Civil Procedure (Lawyers Edn,) Vol. 1 a 7.
SB8! v. N.at Sundara Money, (1976) 1 `CC 82a; Union of India v. Hafz Mobd. Said, AIR 1975
Pp. 485-5oo.
3.
Syedna Taher Saifuddin v. State of Bombay, AIR 1958 SC 253
Del 77 pp. 78-79 (FB). For detailed discussion and case law, see, Authors', Code of Civil
Procedure (Lawyers' Edn.) Vol. 2 at pp. 514-15.
Ramesh
at p. 255: 1958 5CK 100
v.
Gendalal Motilal Patni, AIR 1966 SC 1445: (1966) 3 SCR 198. 8. Or. 45 R.
2(1).
amesh v. Gendalal Motilal Patni, AIR 1966 SC 1445: (1966) 3 SCR 198; Union of Inn 9. R. 2(2).
Gopal Singh, (1967) 2 SCWR 639; SC 0. R.3.
Tarapore & Co. v. V.O. Tractors Expor, 9
233 at
p. 238; Prakash Chand v. Hindustan Steel Ltd., SCC
11. Rr.
3(2), 6,7.
Or. 45 R1. (197o) 2 8o6 at
po
 Court
Appeals to Supreme
592 Chapter 6 Procedure at hearing 593

(b) Limitation The court has also the power to refund the balance
1963 enacts thath appls.
appldaysicrom
ation thefor le f security.
an
Act,

Article 133 of the

Limitation
be filed witthin o
ce
after necessary deductionsfor expenses.
the Supreme
Court can t h ed e p o s i t .
to
to appeal or
Hnal order.
Rule 88
decree, judgement of a p p e a l :
Sot Admission
in Constitution Ad tions regarding furnishing of security and making of deposit
(Effect of amendment Where

t the court shall declare the appeal admitted, give notice

the.

however,
must
be read in the light"*
These provisions,
By the Con ariedsDondent and transmit.the.recordto the Supreme CourtIf
of the Constitution.
Article 134-A
T973, Article
I34-A has been eo to rnished or the costs deposited appearsto be inadequate, the
Amendmentj Act, Court, pasei with ecurider further security to be furnished or costs to be deposited.7
t states that every High nay ant fais tocomply_WIthsuch order, the proceedingsshallbe
makit6
I August
1979.

ment, decree, final order

or
sentence referred to in
shatp20ud
Ar irom t h e appellantfails

hall not proceed

appeal shal without an order of the Supreme
to d0, either suO MOtu Or
the
r 134(T), may, îf
ft deems so ed and execution ofthe decree shall not be stayed meanwhile."
or
is. nade, by behalf of the partyaggrieved,i
or on oral The
cation
ent, decree, final ediarey appl
diteri
Courd

making of such order ofcourtpending appeal

the passing or
or sen
a certihcate may begiven or ngr.13
determine whether is that it an aggrieved
Powers

The effeca of the amendment encY of an appeal to the Supreme Court does not affectthe right of
approach the Supreme Court under Article 132, 33 or 134 party Wants 1hepeholdertoexecutethedecree unless thecourtotherwise directs.20
thedecree-holder

certificate from the High Court, he

will have to make an e e h ecourtm a ymay stay execution aftertakingsufficientsecurity from theappet-
judgment, andalappli h eco
allow the decreeto.beexecuted aftertakingsufficient security
immediately afterthe pronouncement of the cation allowi

cation 1s not made ediately, by taking resort to Articlesuch

3a an appli Jant
or itmay
the
respondent.
21

h the of the from

Limitation Act,1963, he may not be able to approach the S Supreme
The reason is that the source of power isArticles 132, 132 Court. oforders of Supreme Court: Rules 15-16
134A, and if an application not ade as per the provisioread with
Execution

is g)
Article
Constitution, theprocedural w [Article 133(b), Limitation. of the rheapDeal will then be heard by the Supreme Court and an order will
not override the substantive law (Article 134-A of the Constitui03
can e made. hoever desires to execute a decree or an order of the Supreme
d
an application even if it is filed within a period of sixty days fromth Court shall apply by a petition accompanied by a copy of the decree or
rler sought to be executedto the court from which the appeal was pre-
of judgment, order, etc. as per Article 133tb) of the Limitation Acts frredTo the Supreme Court. Such court shall transmit the record of the
is not maintainable at aw. The authors are, therefore, of the opinion thatin
SupremeCourt to the trial court or to such court as the Supreme Court may
the light of the Constitution (Forty-tourth Amendment). Act,
1978, Artide direct, with the necessary directions for execution of the same. The court
133(6) of the Limitation Act, 1963 requires to be amended. But even if itis to which it is transmitted shall executeit in thesame manner as it executes
not done, it cannot override the provisions of the
Constitution. isown decrees and orders. The ordersrelating to such execution shal be

dSecurity and deposit: Rules 7, 9 & 12 appealable in the same manner asum
oWndecree.23 the orders relatingto the execution of its
When the certifhcate is granted,
the applicant-should-furnish
the costs of the respondent and also deposit the expenses for security for
translating
pEinting, indexing, etc. within the stiputated period. The court may reyoke 15. Rr. 7,9,
12.
6..8;see also, Shiva Jute Baling Ltd. v. Hindley & Co., AIR 1955 SC 464: (1955) 2 SCR 243.
12. . . 10, 14; see also, R. 9-A; see also, State of Maharashtra v. M.N. Kaul, AIR 1967 SC 1634.
Art. 133b),
also, Authors'Limitation
Act, 1963. But see "Effect of amendment in Constitution ,
inn
18. R. 11.
Code of Civil Procedure, Vol. S. . 1 ). See also, Deochand v. Shiv Ram, AIR 1965 SC 615 atp. 617: (1965s) 1 SCR 109.
2,
13.
For Statement of Objects and Reasons, see, Gazette109.of India, 11, 2,
Pt. S. Extra, dt 12
20. Rr. 7,9, 12.
at p. 616; see also, SBI v. Employees' Union,
. (1987) 4
Keshava S. Jamkhandi v. Ramachandra S. Jamkhandi,
SCC
370. 4.19(a).
22. R. 15.
See also, Deochand v. Shiv
Ram, AlR 1965 SC 615.
432 (FB); Dhangir v. Jankidas, AIR AIR 1981 Kant 97: (190 Kanty 23. R. 16.
1990 Raj 102.
594 Chapter 6 Appeals to Supreme
Court

C
COON
NSST
TIIT
TUU:TION
Part t
UNDER
APPEALS
Article 136
Ar
che igut
.Ourt toConst
4. and r34-A,
132,
133
on
theSSupreme
Articles
deter
gtapt
minatiopremensenteCounnce
above powers
Over anda wide
and
plenary

very anY
Judgment,
passed
decree,
by an spe.
nfers from tor
appeal interlocutorY)
onr he
Clal leave
to as conferred
well
as powers Co.
order (final Code saves the in the

Procedute
or nothing
112
of the declares that estaset
Section and
C o n s t i t u t i o n

by the these
powers.*

affect
would

24. For detailed

discussion, see, Authors' Lectures on Law (202r),
Lecture 9.

Administrative L