Second appeal
Section 100 of the Code of Civil Procedure, 1908 deals with second appeal. Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial ques The Act came into force on 01 Jan 1909.
1[100. Second appeal.--(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.
(2) An appeal may lie under this section from an appellate decree passed ex parte.
(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.
(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:
Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.]
STATE AMENDMENT
Kerala.
In sub-section (1) of section 100 of the Principal Act, after clause (c), the following clause shall be added, namely:
(d) the finding of the lower appellate court on any question of fact material to the right decision of the case on the merits being in conflict with the finding of the Court of first instance on such question.
[Vide Kerala Act 13 of 1957 sec. 4.]
Section 100, The Code of Civil Procedure, 1908 (Act 5 of 1908).
Cross-references
Extracted from the operative text of the enactments themselves. Every destination below exists in our corpus.
Related judgements & precedents
These are some judgments that construed this section, and hold precedence value. They hold authority on how to read, interpret and use this section.
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Nazir Mohamed v. J. Kamala
Court's Decision & Legal Precedent
Judgement of Main Case order-11.pdf 2020-08-27 (not same-date order-10 ROP). Navin Sinha/Indira Banerjee. CPC s.100 second appeal lies only on a substantial question of law, which must be formulated; the High Court cannot reverse concurrent findings of fact or reappreciate evidence as if it were a first appeal. Possession-follows-title / adverse-possession facts were not a s.100 question. Fills CPC 100.
On this section: s.100 second appeal lies only on a formulated substantial question of law; concurrent findings of fact are not reopened as a first appeal.
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Syeda Rahimunnisa vs Malan Bi (dead) by Lrs. Etc
Court's Decision & Legal Precedent
The High Court cannot exercise second appellate jurisdiction under Section 100 of the Code of Civil Procedure without formulating a substantial question of law that satisfies the test of being debatable, not previously settled by binding authority, materially affecting the parties' rights, and arising from pleadings and sustainable findings of fact. Questions that are essentially factual in nature, even if formulated as questions of law, do not constitute substantial questions of law within the meaning of Section 100 CPC. Furthermore, the High Court has no jurisdiction to remand a case to the trial court for de novo trial in a second appeal unless the party seeking remand has explicitly raised such ground before the first appellate court, the first appellate court has recorded findings on such ground, and the High Court has formulated a substantial question of law on the issue of remand. Concurrent findings of fact by the trial court and first appellate court, when based on evidence and not perverse, are binding on the High Court and cannot be set aside in second appeal merely because another view is possible on reappreciation of evidence.
On this section: Detailed analysis of the scope of second appeals and the requirement for formulating substantial questions of law. Court established that the existence of a substantial question of law is the sine qua non (essential prerequisite) for the exercise of jurisdiction under Section 100 CPC. Court noted that a substantial question of law must be debatable, not previously settled, material to the decision, and involved in the case with proper foundation in pleadings.
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Narayanan Rajendran vs Lekshmy Sarojini
Court's Decision & Legal Precedent
Under Section 100 CPC as amended in 1976, the High Court has limited jurisdiction to interfere with judgments of subordinate courts only where a substantial question of law is involved. Such substantial question of law must be formulated by the High Court at the time of admission of the second appeal itself. The High Court cannot reappreciate evidence and reverse concurrent findings of fact made by trial court and first appellate court merely on the ground that another view was possible or that the findings appear perverse. When no substantial question of law is formulated by the High Court, or when the High Court bases its judgment on grounds not raised by parties, not pleaded in the suit, and on which no evidence was led and no issues framed by trial court, such interference is jurisdictionally ultra vires and the judgment must be set aside.
On this section: High Court's jurisdiction in second appeal is strictly limited to cases involving substantial questions of law. Court must formulate such questions at time of admission and hear appeal only on formulated questions. Cannot interfere with concurrent findings of fact merely based on reappreciation of evidence.
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Amar Nath vs Gian Chand
Court's Decision & Legal Precedent
When a person holding a power of attorney executes a document on behalf of the principal and presents that document for registration, such person is the 'person executing' the document within the meaning of Section 32(a) of the Registration Act and is entitled to present it for registration without producing the original power of attorney. The production of the original power of attorney is not mandatory for valid registration. Section 18A of the Registration Act requires production of a true copy of the document being registered (not the power of attorney) to expedite the copying process. Sections 32(c) and 33 of the Registration Act, which deal with production of power of attorney, apply only to agents presenting documents for registration, not to persons who have themselves executed the document. Cancellation of a power of attorney, even if validly effected, does not become effective against third parties until notice of such cancellation is brought to their knowledge, as per Section 208 of the Indian Contract Act. The High Court exceeded its jurisdiction under Section 100 CPC by reappreciating evidence and reversing concurrent findings of the trial court and first appellate court on factual matters.
On this section: Governs second appeals in High Court; Court held High Court exceeded its jurisdiction by reappreciating evidence and reversing concurrent findings
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Mrityunjoy Sett(d) by Lrs vs Jadunath Basak (d) by Lrs
Court's Decision & Legal Precedent
An admission made by a party in a court of law, originating from the person against whom it is sought to be produced, constitutes the best possible and most reliable form of evidence and shall hold good unless withdrawn or clarified by the admitting party. Such an admission shall carry greater evidentiary weight than uncorroborated documentary evidence like rent receipts, and shall be admissible and usable in all subsequent legal proceedings. Further, where a statutory notice prescribes a one month period expiring with a month of the tenancy, full and complete compliance is achieved when one month's clear time is provided, regardless of whether the underlying tenancy record contains documentary evidence suggesting a different calendar system, unless such evidence is substantiated by credible witness testimony from the document's creator. A High Court acting under Section 100 of the CPC cannot set aside the judgment and decree of a lower appellate court when the High Court itself acknowledges that no substantial question of law is involved in the appeal, as such interference would be contrary to settled principles of appellate jurisdiction.
On this section: Governs Second Appeals in High Courts and the circumstances under which appellate courts can interfere with concurrent findings of fact. The court analyzed the scope and limitations of this jurisdiction in the context of the impugned judgment.
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C. A. Sulaiman vs State Bank of Travancore, Alwayee
Court's Decision & Legal Precedent
The High Court's jurisdiction under Section 100 CPC to entertain and dispose of Second Appeals is strictly confined to cases involving a substantial question of law, which must be formulated by the High Court before or at the time of hearing the appeal. The proviso to Section 100(5) permitting hearing on a different substantial question of law operates only after an initial substantial question of law has been formulated. The failure to formulate and hear the appeal on formulated substantial questions of law, even if the High Court's analysis of evidence appears substantively sound, renders the judgment of reversal invalid as it violates mandatory procedural requirements, and such judgment must be set aside and the matter remitted for proper adjudication in accordance with Section 100 CPC.
On this section: Comprehensive analysis of Section 100 regarding Second Appeals, with specific focus on subsections (1), (3), (4), and (5). Court held that formulation of substantial question of law is mandatory before hearing Second Appeal, and this requirement was introduced by 1976 amendment making it essential for High Court jurisdiction.
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B. C. Shivashankara vs B. R. Nagaraj
Court's Decision & Legal Precedent
After the 1976 amendment to Section 100 of the Code of Civil Procedure, 1908, it is mandatory and imperative for the High Court to formulate a substantial question of law before entertaining and deciding a Second Appeal. The High Court cannot allow or dismiss a Second Appeal without such formulation. The absence of formulation of a substantial question of law in the judgment vitiates the entire judgment, and such judgment cannot be maintained. The High Court's jurisdiction in Second Appeal is strictly confined to questions involving substantial questions of law and does not extend to pure questions of fact or to interference with factual findings of lower courts if such findings are based on proper appreciation of evidence and contain no perversity, illegality, or irregularity.
On this section: Mandatory requirement for High Court to formulate substantial question of law before entertaining and deciding Second Appeal; procedural safeguard introduced by 1976 amendment; jurisdiction strictly limited to substantial questions of law and not pure questions of fact; memorandum of appeal must precisely state substantial question of law
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Gouranga Chandra Roy vs Sarada Sundari Roy
Court's Decision & Legal Precedent
When a High Court deals with a second appeal but fails to frame substantial questions of law as mandatorily required under Section 100 of the Code of Civil Procedure, 1908, the impugned order is defective and deserves to be set aside, with the matter being remitted to the High Court for fresh consideration in accordance with law.
On this section: The Court applied Section 100 CPC as the mandatory procedural requirement for High Courts to frame substantial questions of law before undertaking a substantive review in second appeals. The High Court's failure to do so was identified as a critical defect warranting remand of the case.
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Landmark Apartments Pvt. LTD vs Union of India
Court's Decision & Legal Precedent
The Insolvency and Bankruptcy Code (Second Amendment) Act, 2018, which deems allottees of real estate projects as financial creditors under Section 5(8)(f) and provides for their representation on Committee of Creditors through authorized representatives under Sections 21(6A) and 25A, is constitutionally valid under Articles 14, 19(1)(g), and 300-A of the Constitution of India. The amendment does not violate Article 14 as allottees, who finance their own apartment projects and provide consideration for time value of money through installment-based advance payments, constitute a rationally distinct class of financial creditors similar to debenture holders and fixed deposit holders, with intelligible differentia bearing nexus to the Code's object of maximizing creditor recovery and protecting stakeholders in corporate rehabilitation. The amendment does not infringe Article 19(1)(g) as it is a reasonable restriction in public interest for protecting millions of home buyers with substantial invested amounts. The amendment does not deprive developers of property without constitutional authority as it operates through valid legal process respecting due process and defenses. The explanation to Section 5(8)(f) merely clarifies that allottees already fell within the definition's ambit and is not substantively enlarging the scope. The classification does not offend the UNCITRAL Legislative Guide as allottees are recognized as financial creditors based on genuine financing characteristics. The Code and RERA can harmoniously coexist as parallel remedies serving different purposes, with Code taking primacy due to its later non-obstante clause. Parliament's legislative judgment in treating allottees as financial creditors is entitled to judicial deference as an economic experiment within free play in joints doctrine.
On this section: Grounds for appeal from Real Estate Appellate Tribunal to High Court; applied by reference in RERA
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Ongc LTD vs Gujarat Energy Transmission Corp(l)
Court's Decision & Legal Precedent
Where a special statute (such as the Electricity Act, 2003) prescribes a specific limitation period with a defined outer limit (120 days under Section 125), that limitation is mandatory and reflects fundamental public policy favoring expeditious resolution. Neither Article 142 of the Constitution nor Section 5 of the Limitation Act can extend such limitation period beyond the statutory outer limit. An order previously condoning delay beyond the prescribed limit should be recalled and ignored. The preliminary objection based on such non-condonable delay is maintainable and must be accepted, resulting in dismissal of the appeal without consideration of merits.
On this section: Section 125 of Electricity Act provides that appeals can be filed to Supreme Court on grounds specified in Section 100 CPC (substantial questions of law). This sets the scope of appellable issues.
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Union of India vs P. C. Joshi
Court's Decision & Legal Precedent
Parliament has the power to enact legislation vesting appellate jurisdiction previously exercised by High Courts in alternative adjudicatory mechanisms (including tribunals) for specific subject matters. However, such transfer is subject to the constitutional limitation that the newly created court/tribunal must conform to the salient characteristics, standards, and safeguards of the court being replaced - particularly regarding judicial independence, security of tenure, appointment procedures requiring judicial involvement, and adequate qualifications. Where the jurisdiction being transferred relates to deciding substantial questions of law (which is a core and constitutional function of superior courts), the substituting forum cannot be a tribunal lacking requisite legal qualifications and judicial independence safeguards. The National Tax Tribunal Act, 2005, by vesting appellate jurisdiction to decide substantial questions of law relating to taxation in a tribunal lacking judicial composition, constitutional safeguards for member independence, properly constituted appointment process, and proper qualifications requirements, violates the basic structure doctrine by impairing the separation of powers principle and the core constitutional function of judicial review vested in High Courts. Therefore, the Act is unconstitutional and void.
On this section: Traditional scope of second appeals and questions of law
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Union of India vs G. Baskar
Court's Decision & Legal Precedent
While Parliament has constitutional power to transfer appellate jurisdiction from High Courts to tribunals under Articles 246, 247 and subject to Article 323B, such transfer is limited by the basic structure of the Constitution. The core judicial function of deciding substantial questions of law is vested exclusively in superior courts of record (High Courts and Supreme Court) and cannot be transferred to any other body, including tribunals. When any judicial function is transferred to a tribunal, the tribunal must possess the same independence, security of tenure, qualification requirements, and appointment procedures as the court being substituted. Any tribunal exercising such transferred jurisdiction must have members who are judicially trained and experienced in law, and must be insulated from executive control. The separation of powers doctrine, rule of law, and judicial review are inviolable basic structural features of the Constitution that cannot be infringed by legislation. Therefore, the National Tax Tribunal Act, 2005, to the extent it transfers the appellate jurisdiction to decide substantial questions of law from High Courts to the National Tax Tribunal, and to the extent Sections 5, 6, 7, 8 and 13 do not provide for requisite independence and qualification safeguards, is unconstitutional and void.
On this section: Second appeal on substantial questions of law; historical provision vesting such jurisdiction in High Courts
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Union of India vs I. T. A. T. Bar Association
Court's Decision & Legal Precedent
Parliament has the power to transfer appellate jurisdiction from High Courts to an alternative court or tribunal, but in doing so it must ensure that the newly created court or tribunal conforms with the salient characteristics, standards, and safeguards of the court sought to be substituted. When the jurisdiction transferred involves deciding substantial questions of law (a core function historically performed by superior courts), the tribunal must possess member qualifications equivalent to High Court judges, provide equivalent independence safeguards, appointment procedures conforming to constitutional standards, and adequate tenure protection. The tribunal cannot be placed under control of the Government (which is invariably a party to tax disputes). The NTT Act fails these requirements and is therefore unconstitutional.
On this section: Framework for appeals on questions of law and supervisory jurisdiction of higher courts
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T.D. Vivek Kumar vs Ranbir Chaudhary
Court's Decision & Legal Precedent
Where a contract of sale of immovable property expressly stipulates that upon the seller's failure to execute the sale deed within the stipulated time, the seller shall pay double the earnest money as the remedy, the buyer is not entitled to a decree for specific performance. Instead, the buyer is entitled to recover the stipulated sum (double earnest money) as the agreed remedy. The Court may refuse to pass a decree for specific performance and grant the monetary remedy where the sum is specifically named in the contract as the alternative to performance of the act. The principle that the buyer's readiness and willingness to perform does not alone entitle the buyer to specific performance when the contract provides for a named monetary remedy. Concurrent findings of readiness and willingness, while not to be lightly disturbed, do not override express contractual terms that define the remedy available for breach.
On this section: The Court noted that the High Court failed to frame a substantial question of law as required under Section 100 while allowing the second appeal, which is a mandatory procedural requirement for reversing concurrent judgments.
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G. Sanjeeva vs M. Vishnu Kumar
Court's Decision & Legal Precedent
When a suit is based on a promissory note and its execution is proved or the signature is admitted, the court must raise a presumption under Section 118(a) of the Negotiable Instruments Act that it was made for consideration; the burden to disprove such consideration lies solely on the defendant.
On this section: Scope of interference by High Court in second appeals; requirement of substantial questions of law.
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Ratnagiri Nagar Parishad Chief Officer vs Gangaram Narayan Ambekar
Court's Decision & Legal Precedent
Environmental disputes involving substantial questions relating to environment, including enforcement of legal rights relating to environment, fall within the exclusive jurisdiction of the National Green Tribunal under Section 29 of the National Green Tribunal Act 2010, and civil courts are barred from entertaining such disputes even if the suit was filed before the NGT was established. A suit for permanent injunction simpliciter without seeking declaratory relief is not maintainable when challenging administrative decisions. A quia timet action for preventive injunction requires proof of imminent danger and substantial irreparable harm, not mere apprehension or possibility of future nuisance. The burden of proof in establishing actionable nuisance rests on the plaintiff, and weakness in the defendant's evidence cannot shift this burden to the defendant.
On this section: Governs second appeals before High Courts. The High Court noted no substantial question of law arose warranting interference with appellate court findings.
The holding above is the ratio decidendi as extracted from the judgment by eCourts India, reproduced unaltered — it is a rendering of the court's reasoning, not a substitute for its words. Read the order itself before relying on it.
Judgments citing this section
These may be obiter dicta or a precedent, for you to study. These are the judgments where this section is quoted.
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… In other words, it is the final Court of fact and law. 15. However, under Section 125 of the 2003 Act, the powers expected to be exercised by this Court is circumscribed and controlled by the pari materia provision contained under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as " the CPC "). Thus, it is axiomatic that an appellant has to raise a substantial question of law, which if the Court finds to be in existence, shall accordingly frame it in whatever manner it deems fit and proper, and put it to the other side to …
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… It also did not deal with the other findings recorded by the Courts below. - 14. In view of the above discussion and on the findings recorded above, the impugned judgment cannot be sustained as it not only does not conform to the scope of Section 100 of the Code of Civil Procedure, 1908 but also as it was perverse on appreciated evidence, and also ignoring material evidence. - 15. The appeal is, accordingly, allowed. The impugned judgment and order of the High Court is set aside and that of the Trial Court and the First Appellate Court is confirmed. The …
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… SUBMISSIONS ON BEHALF OF THE APPELLANT 17. The appellant contends that the High Court erred in reversing the concurrent findings of fact established by the Trial Court and the First Appellate Court. According to the appellant, the High Court overstepped its jurisdiction under Section 100 of the Code of Civil Procedure, 1908[4]( page-7-1), which allows intervention only in cases involving a substantial question of law. The appellant asserts that the High Court introduced an entirely new ground—whether the marriage had irretrievably broken down—without this issue being argued in the earlier …
Questions about Section 100
What have the courts held on Section 100 of the Code of Civil Procedure?
Nazir Mohamed v. J. Kamala (27 Aug 2020) is the leading judgment on this section among those set out below: s.100 second appeal lies only on a formulated substantial question of law; concurrent findings of fact are not reopened as a first appeal. Another 15 judgments on this section are set out below, 15 of them from the Supreme Court. They run from 2006 to 2023.
How do I find court cases under Section 100 of the Code of Civil Procedure?
In judgments and charge sheets this section is written several ways, and each form finds a different set of orders. These search the full text of every order eCourtsIndia holds, best matches first: CPC 100, section 100 CPC, section 100 of the Code of Civil Procedure. People searching for it also type cpc 100 omicron and cpc 100a. Each opens the full list of orders on eCourtsIndia, where it can be narrowed by court, year and outcome. 16 reported judgments on this section are set out on this page, beginning with Nazir Mohamed v. J. Kamala (27 Aug 2020).
What should I read with Section 100 of the Code of Civil Procedure, and has it changed?
2 other provisions in this corpus refer back to it.
When did Section 100 of the Code of Civil Procedure come into force?
Section 100 of the Code of Civil Procedure, cited as CPC 100, came into force on 01 Jan 1909, having been enacted on 21 Mar 1908. It is in force as at the date shown on this page.
Other sections of this Act
- 115. Revision2475 words
- 60. Property liable to attachment and sale in execution of decree1869 words
- 2. Definitions890 words
- 9. Courts to try all civil suits unless barred714 words
- 42. Powers of Court in executing transferred decree653 words
- 92. Public charities610 words
Source and method. Compiled from the enactments of Parliament and of the State legislatures as published on India Code, and republished together with commentary and other original matter under section 52(1)(q)(ii) of the Copyright Act, 1957. Structured, cross-referenced and maintained by eCourtsIndia. Text as in force on 14 Oct 2026. This page is not a substitute for legal advice.