Code of Civil Procedure, 1908 (CPC)
Appeals to the Supreme Court: Sections 109 to 112 and Order XLV CPC
A civil case can reach the Supreme Court by two quite different routes. One is the appeal by certificate, where the High Court itself certifies that the case raises a substantial question of law of general importance that needs deciding by the Supreme Court: Article 133 of the Constitution, Sections 109 and 112 of the Code and Order XLV govern it. The other is the special leave petition under Article 136, which needs no certificate and depends on the Supreme Court's own discretion. These notes cover both, and explain why the second has almost displaced the first.
The two roads to the Supreme Court, and what each requires
1. The Constitutional Provision: Article 133
§ Article 133 of the Constitution (in substance) (1) 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 (a) that the case involves a substantial question of law of general importance; and (b) that in the opinion of the High Court the said question needs to be decided by the Supreme Court. (2) Notwithstanding anything in Article 132, any party appealing to the Supreme Court under clause (1) may urge as one of the grounds that a substantial question of law as to the interpretation of the Constitution has been wrongly decided. (3) 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. |
§ Both limbs of the certificate are required Neither alone will do: • A substantial question of law of GENERAL IMPORTANCE. This is a higher threshold than the substantial question of law required for a second appeal under Section 100. There the question need only be substantial as between the parties; here it must matter beyond them, affecting a class of cases or an unsettled point of general application. • That the question NEEDS TO BE DECIDED BY THE SUPREME COURT. Even an important question does not qualify if it is already settled by Supreme Court authority, or if the High Court's answer is plainly right, or if the point can be left to develop in the High Courts. • Article 133(3) adds a structural bar: no appeal lies from the judgment, decree or final order of a single judge of a High Court, unless Parliament provides otherwise. |
2. The Code: Sections 109 to 112
Section | What it provides |
|---|---|
Section 109 | Subject to the provisions in Chapter IV of Part V of the Constitution and to such rules as may be made by the Supreme Court, 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 that the case involves a substantial question of law of general importance and that in its opinion the said question needs to be decided by the Supreme Court |
Section 110 | Omitted by the Amendment Act of 1973, which removed the old pecuniary threshold of twenty thousand rupees that had governed appeals to the Supreme Court |
Section 111 | Omitted by the same amendment |
Section 112(1) | Nothing contained in this Code shall be deemed to affect the powers of the Supreme Court under ARTICLE 136 or any other provision of the Constitution, or to interfere with any rules made by the Supreme Court and for the time being in force |
Section 112(2) | Nothing herein contained applies to any matter of criminal or admiralty or vice-admiralty jurisdiction, or to appeals from orders and decrees of Prize Courts |
§ Why Section 112 is the most important of the four The Code's provisions on appeals to the Supreme Court are subordinate to the Constitution, and Section 112 says so expressly. The practical consequence is decisive: a refusal of a certificate by the High Court closes the road under Article 133, and leaves Article 136 entirely open. The litigant who is refused a certificate has lost nothing except the certificate; he may still petition the Supreme Court for special leave. It also means that no rule of the Code can cut down the Supreme Court's jurisdiction, and that the Supreme Court Rules govern where they apply. |
3. Procedure: Order XLV
Rule | What it provides |
|---|---|
Rule 2 | Whoever desires to appeal to the Supreme Court shall apply by petition to the court whose decree is complained of |
Rule 3 | Every petition shall state the grounds of appeal and pray for a certificate that the case involves a substantial question of law of general importance and that in the High Court's opinion it needs to be decided by the Supreme Court |
Rule 4 and Rule 5 | Notice of the petition is given to the opposite party, who may show cause why the certificate should not be granted; the court then considers the petition and, where the necessary conditions are satisfied, grants the certificate |
Rule 7 | Where the certificate is granted, the applicant shall, within the time allowed, furnish SECURITY for the costs of the respondent, and DEPOSIT the amount required to defray the expense of translating, transcribing, indexing and transmitting the record |
Rule 8 | On the security being furnished and the deposit made, the court shall declare the appeal admitted, give notice to the respondent, transmit a correct copy of the record to the Supreme Court, and give the parties a certificate that the security and deposit have been duly furnished |
Rule 12 | The court may, at any time before the appeal is admitted, on the application of the opposite party, order the execution of the decree appealed from |
Rule 13 | Notwithstanding the grant of a certificate, the decree appealed from shall be UNCONDITIONALLY EXECUTED unless the court otherwise directs; the court may stay execution on such terms as to security or otherwise as it thinks fit, or may take security for the performance of the decree |
Rules 15 and 16 | The court gives effect to the order of the Supreme Court on the appeal, and execution proceeds as on a decree of the court itself |
Two features of the procedure deserve emphasis. Rule 13 repeats, at this level, the principle that runs through the whole of the Code's appellate provisions: an appeal is not a stay, and the decree is to be executed unconditionally unless the court otherwise directs on terms. And Rule 7 makes the appeal conditional on security and a deposit, which is why an appeal by certificate is in practice a more demanding route even after the certificate has been granted.
4. Appeal by Certificate Compared with Special Leave
Basis | Appeal by certificate, Article 133 with Sections 109 and 112 | Special leave petition, Article 136 |
|---|---|---|
Source | Article 133 of the Constitution, worked by Section 109 and Order XLV | Article 136 of the Constitution, a power of the Supreme Court itself |
Who decides whether it goes up | The HIGH COURT, by granting or refusing the certificate | The SUPREME COURT, in its own discretion |
From what | A judgment, decree or final order in a civil proceeding of a High Court | Any judgment, decree, determination, sentence or order in any cause or matter passed by any court or tribunal, except a court or tribunal constituted under a law relating to the Armed Forces |
Threshold | A substantial question of law of general importance, which in the High Court's opinion needs to be decided by the Supreme Court | No stated threshold; the discretion is exercised sparingly, ordinarily where there is a gross miscarriage of justice or a question of public importance |
Single judge decisions | Article 133(3): no appeal from a judgment, decree or final order of one judge of a High Court | No such bar; leave may be sought from any decision |
Procedure below | Order XLV: petition, notice, certificate, security and deposit | None in the court below; the petition is filed directly in the Supreme Court |
Effect of refusal | Refusal of the certificate closes this route only; Section 112 preserves Article 136 | Refusal of leave ends the matter, and a dismissal in limine is not an adjudication on the merits |
In practice | Rarely granted | The route by which almost every civil matter reaches the Supreme Court |
§ Why Article 136 has displaced the certificate The High Court is asked to certify that its own decision needs correcting, or at least reconsidering, which is a request courts are naturally slow to grant. The threshold is higher. General importance, and a need for the Supreme Court specifically to decide, is more than most litigants can show. Article 136 is available anyway, without a certificate, without a threshold, and against decisions of courts and tribunals of every kind. A litigant refused a certificate simply files a special leave petition. The result: the certificate route survives on the statute book and is still examinable, but the working route for civil appeals to the Supreme Court is Article 136. |
5. Landmark Points
- Article 133(1). Both limbs are required: a substantial question of law of general importance, and the High Court's opinion that it needs to be decided by the Supreme Court.
- Article 133(3). No appeal lies from a judgment, decree or final order of a single judge of a High Court, unless Parliament provides otherwise.
- Section 109. The Code's provision mirrors Article 133 and is subject to Chapter IV of Part V of the Constitution and to the Supreme Court Rules.
- Sections 110 and 111, omitted in 1973. The old pecuniary threshold for appeals to the Supreme Court no longer exists.
- Section 112(1). Nothing in the Code affects the powers of the Supreme Court under Article 136, so a refused certificate leaves special leave open.
- Order XLV Rules 7 and 8. Security for the respondent's costs and a deposit for the record are conditions of admitting the appeal.
- Order XLV Rule 13. The decree is to be executed unconditionally notwithstanding the certificate, unless the court otherwise directs on terms.
6. Frequently Asked Questions
When does an appeal lie to the Supreme Court under the CPC?
Under Section 109 read with Article 133, from a judgment, decree or final order in a civil proceeding of a High Court, where the High Court certifies that the case involves a substantial question of law of general importance and that in its opinion the question needs to be decided by the Supreme Court.
How is this threshold different from Section 100?
Section 100 requires a substantial question of law, which need only be substantial as between the parties. Article 133 requires a substantial question of law of general importance, mattering beyond the parties, and in addition the High Court's opinion that it needs to be decided by the Supreme Court.
What is the procedure for obtaining a certificate?
Under Order XLV, a petition is made to the court whose decree is complained of, stating the grounds and praying for the certificate. Notice goes to the opposite party, who may show cause, and where the conditions are satisfied the certificate is granted. Security for costs and a deposit for the record must then be furnished before the appeal is admitted.
Does the grant of a certificate stay the decree?
No. Order XLV Rule 13 provides that notwithstanding the grant of the certificate, the decree appealed from shall be unconditionally executed unless the court otherwise directs, and the court may stay execution on such terms as to security or otherwise as it thinks fit.
What happens if the High Court refuses a certificate?
The route under Article 133 is closed, but nothing more. Section 112(1) provides that nothing in the Code affects the powers of the Supreme Court under Article 136, so the party may petition the Supreme Court for special leave.
What is the difference between an appeal by certificate and a special leave petition?
In the first, the High Court decides whether the case goes up, on the stated threshold of general importance, and the Code's procedure in Order XLV applies. In the second, the Supreme Court itself decides, in its discretion under Article 136, with no certificate, no threshold and no procedure in the court below.
Can an appeal lie from a single judge of a High Court to the Supreme Court?
Not by certificate. Article 133(3) provides that no appeal shall lie to the Supreme Court from the judgment, decree or final order of one judge of a High Court unless Parliament by law otherwise provides. Special leave under Article 136 is not subject to that bar.
7. Related Topics in This CPC Series
- Second Appeals: Sections 100 to 103 and Order XLII
- First Appeals: Sections 96 to 99A and Order XLI
- Appeals from Orders: Sections 104 to 106 and Order XLIII
- Reference, Review and Revision under the CPC