Order XLV of C.P.C

  1. General[1]

Appeals to the Supreme Court are governed by the provisions of Articles 132,133,134-A of the Constitution of India with regard to civil matters. Subject to the provisions of Constitution, 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
  • In the opinion of the High Court the said question needs to be decided by the Supreme Court.[2]

Section 109 and 112 read with Order XLV deals with appeals to the Supreme Court.

Order XLV Rule 4,5,17 is repealed by various amendments.

  1. Conditions: Section 109, Order XLV Rule 3

An appeal would lie to the Supreme Court under Section 109of the code only if the following conditions are fulfilled:

  • a judgment, decree or final order must have been passed by the High Court;
  • a substantial question of law of general importance must have been involved in the case; and
  • in the opinion of the High Court, the said question needs to be decided by the Supreme Court.

Relevant Cases:

  • Sajjan Singh vs. State of Rajasthan AIR 1954 Raj. 301
  • Manikchand Durgaprasad vs. Pratabmull Rameshwar and Anr. AIR 1961 Cal. 483

Judgment, decree and final order

A judgment, decree or final order against which an appeal can be preferred to the Supreme Court must be one which purports to put an end to the litigation between the parties.[3] No certificate can be granted in respect of an interlocutory order.[4]

Substantial question of law of general importance

 The expression substantial question of law of general importance has not been defined in the Code, but it is clear that the High Court can grant certificate under Section 109 only when it is satisfied that the question of law involved in the case is not only substantial but also of general importance. In other words, the substantial question of law must be such that, apart from the parties to the litigation, the general public should be interested in determination of such questions by the Supreme Court.

Needed to be decided by Supreme Court

The word needs suggests that there has to be a necessity for a decision by the Supreme Court on the question, and such necessity can be said to exist when, for instance, two views are possible regarding the question and High Court takes one of the said views. Such a necessity can also be said to exist when a different view has been expressed by another High Court.[5]  

  1. Procedure at hearing

Application for leave and certificate of fitness

Whoever desires to appeal to the Supreme Court shall apply by a petition to the court whose decree is sought to be appealed from.[6]Ordinarily, such a petition should be decided within 60 days from the date of filing of the petition.[7]

Effect of amendment in Constitution

These provisions, however, must be read in the light of subject to Article 134-A of the Constitution. By the Constitution (44th amendment) Act, 1978, Article 134-A has been inserted with effect from 1 August 1979. The effect of the amendment is that if an aggrieved party wants to approach the Supreme Court under Article 132,133 or 134 after getting certificate from the High Court, he will have to make an oral application immediately after the pronouncement of the judgment, and if not made will not be able to go to Supreme Court.

 Security and Deposit: Rules 7, 9 & 12

When the certificate is granted, the applicant should furnish security for the costs of the respondent and also deposit the expenses for translating, printing, indexing etc. within the stipulated period.  The court may revoke the acceptance of security. The court has also the power to refund the balance of the deposit necessary deductions for expenses.[8]

Admission of appeal: Rule 8

If the security furnished or the costs deposited appear to be inadequate, the court may order further security to be furnished or costs to be deposited.[9]If the appellant fails to comply with such order, the proceedings shall be stayed and the appeal shall not proceed without an order of the Supreme Court.[10] Also Rule 13(1) states that the execution of the decree shall not be stayed meanwhile.[11]

Power of courts pending appeal

The pendency of an appeal to the Supreme Court does not affect the right of the decree-holder to execute the decree unless the court otherwise directs.[12] The court may stay execution after taking sufficient security from the appellant or it may allow the decree to be executed after taking sufficient security from the respondent.[13]

Execution of orders of Supreme Court: Rules 15-16

The appeal will then be heard by the Supreme Court and an order will be made. Whoever desires to execute a decree or an order of the Supreme Court shall apply by a petition accompanied by a copy of the decree or order sought to be executed to the court from which the appeal was preferred to the Supreme Court.  Such court shall transmit the record of the Supreme Court to the trial court or to such court as the Supreme Court may direct, with the necessary directions for execution of the same. The court to which it is transmitted shall execute it in the same manner as it executes own decrees and orders.[14] The orders relating to such execution shall be appealable in the same manner as the orders relating to the execution of its own decree.[15]

  1. Appeals under Constitution

Over and above Articles 132, 133 and 134-A, Article 136 of the Constitution confers very wide and plenary powers on the Supreme Court to grant special leave to appeal from any judgment, decree, determination, sentence or order passed by any court or tribunal. Section 112 of the Code saves the power conferred on the Supreme Court by the Constitution and declared that nothing in the Code of Civil Procedure would affect these powers.

[1] C.K. TAKWANI, CIVIL PROCEDURE 558 (7th ed. 2013).

[2] Ss. 109, 112, The Code of Civil Procedure, 1908, No. 05, 1908 (India).

[3] Jethanand and sons v. State of U.P., A.I.R. 1961 S.C. 794 (India).

[4] Syedna Taher Saifuddin v. State of Bombay, A.I.R. 1958 S.C. 253 (India).

[5] SBI v. Sundara Money, (1976) 1 SCC 822 (India).

[6] Or. 45 R. 2(1).

[7] Or. 45 R 2(2).

[8] Rr. 7, 9, 12.

[9] Rr. 10, 14.

[10] R. 11

[11] Deochand v. Shiv Ram, A.I.R. 1965 SC 615 (India).

[12] Rr. 7, 9, 12.

[13] R. 13(2).

[14] R. 15.

[15] R. 16.

Authored by Divyansh Vyas | Edited by Rini Mathew.

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