[Prior to the amendment of Art. 133 of the Constitution and S. 109 of the Code of Civil Procedure and deletion of S. 110 of the Code, the appellate jurisdiction of the Supreme Court in civil matters was as follows:
(1) There was an unrestricted right to appeal to the Supreme Court where the value of the subject-matter of the dispute was not less than Rs. 20,000 or where the order of the High Court involved directly or indirectly some claim or question respecting property of that amount or value
(a) If the judgment or the final order of the High Court was passed in exercise of its original jurisdiction (ordinary or extraordinary).
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(b) If in exercise of its appellate jurisdiction the High Court reversed the judgment or order of the court below.
(2) Where the appellate judgment of the High Court was one of affirmance, there should also have been “some substantial question of law” involved.
(3) Where the High Court certified that the case was fit for appeal to the Supreme Court, the pecuniary limit did not apply].
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Sections 109 and 110 of the Code of Civil Procedure, 1908, and connected provisions in Rules 3, 4 and 5 of Order XLV and Form No. 12 in Appendix G of the First Schedule to the said Code initially laid down the criterion of valuation of property or the subject-matter of dispute for purposes of appeal to the Supreme Court.
Those provisions were in keeping with the corresponding provisions of clause (1) of Article 133 of the Constitution as it stood before its amendment by the Constitution (Thirtieth Amendment) Act, 1972. Under clause (1) of Article 133 as amended by the said Act, an appeal now lies to the Supreme Court only if the High Court certifies that the case involves a substantial question of law of general importance, and that in the opinion of the High Court the said question needs to be decided by the Supreme Court.
As a consequential measure, it became necessary to amend suitably Ss. 109 and 110 of the Code and the connected provisions referred to above. The Civil Procedure (Amendment) Act, 1973, gave effect to this object by substituting a new section, viz., S. 109, and deleting S. 110, C.P.C.
To the same effect are the provisions contained in Article 133 of the Constitution. It reads:
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“133. Appellate jurisdiction of Supreme Court in appeals from High Court in regard to civil matters:
(1) An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court in the territory of India if the High Court certifies under Art. 134-A
(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 Art. 132, any party appealing to the Supreme Court under clause (1) may urge as one of the grounds in such appeal 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.” Clause (1) of Art. 133 of the Constitution, as stated above, was amended by the Constitution (Thirtieth Amendment) Act, 1972.
The Act came into force from February 27, 1973. Appeals from High Courts in regard to civil matters will, after the amendment of Article 133 (1) of the Constitution, lie in the Supreme Court only in the event of the High Court issuing a certificate to the effect that the case involves a substantial question of law of general importance and needs to be decided by the Supreme Court. Such appeals from the High Courts would be preferred irrespective of the value of the property involved in that case.
Prior to the amendment of Article 133 of the Constitution and S. 109, C.P.C. and deletion of S. 110, C.P.C. an appeal lay to the Supreme Court from a High Court in regard to a civil matter inter alia on a certificate issued by the High Court that the amount or value of the subject-matter of the dispute was not less than Rs. 20,000 or that the judgment, decree or final order involved some claim or question in respect of property of the like amount or value.
Article 133 of the Constitution and S. 109, C.P.C. as amended, provide that 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.
Appeals that might be pending before the Supreme Court already preferred to it because a High Court might already have given certificate would not be affected by the amendment.
Under the provisions of cl.(1) of Art. 132 of the Constitution of India an appeal lies to the Supreme Court from any judgment, decree or final order of a High Court in the territory of India, whether in a civil, criminal or other proceeding, if the High Court certifies under Art. 134-A that the case involves a substantial question of law as to the interpretation of the Constitution.
Article 134 of the Constitution of India relates to the appellate jurisdiction of the Supreme Court in regard to criminal matters.
Under the provisions of Art. 134-A, inserted by the Constitution (Forty-fourth Amendment) Act, 1978, every High Court passing or making a judgment, decree, final order, or sentence, referred to in cl. (1) of Art. 132 or cl. (1) of Art. 133, or cl. (1) of Art. 134 (a) may, if it deems fit so to do, on its own motion; and (b) shall, if an oral application is made by or on behalf of the party aggrieved, immediately after the passing or making of such judgment, decree, final order or sentence, determine as soon as may be after such passing or making, the question whether a certificate of the nature referred to in cl. (1) of Art. 132, or cl. (1) of Art. 133 or, as the case may be, sub-cl. (1) of cl. (1) of Art. 134, may be given in respect of that case.
Under Article 136 of the Constitution of India the Supreme Court has also got the power to grant special leave to appeal from any judgment, decree, determination or order in any cause or matter passed or made by any court or tribunal in the territory of India. Rule 1 of Order XVI of the Supreme Court Rules, 1966, further provides that a petition for special leave to appeal shall be lodged in the Supreme Court within sixty days from the date of the order of refusal of leave to appeal by the High Court and, in any other case, within ninety days from the date of the judgment or order sought to be appealed from; but the Supreme Court may for sufficient cause extend the time on application made for the purpose.
It might be stated that before India attained full independence appeals used to be filed in the Privy Council and the valuation of the suit in the trial court as also of the proposed appeal to their lordships of the Judicial Committee required was only Rs. 10,000. The necessary amendments were introduced by the Adaptation of Laws Order, 1950. The pecuniary limit was subsequently raised to Rs. 20,000 in view of the depreciation of the rupee.
Since the Constitution came into force leave is to be granted under Art. 133 (1), and section 109, C.P.C. must be read subject to Art. 133. The same cannot prevail over Art. 133 (l).
The main principles bearing on section 109 of the Code may now be discussed in the light of leading cases.
Meaning of the expression ‘judgment, decree or final order’:
It is well settled that the word ‘judgment’ in Art. 133 has been used in the sense of a decision finally determining the rights of the parties in the proceeding and not as defined in the Code of Civil Procedure. Certain applications for review were admitted by the Board of Revenue. Applications were made in the High Court under Art. 226 for quashing the orders of the Board admitting the review application.
These writ petitions were rejected. It was held that the judgment of the High Court rejecting the writ petition was judgment, decree or final order within the meaning of Art. 133 and consequently an appeal lay to the Supreme Court against such judgment.
An order on a reference under S. 66 (2) of the Indian Income-tax Act, 1922, [S. 256 (2) of the 1961-Act] is not a ‘judgment, decree or final order’ within the meaning of Art. 133 and therefore no appeal from it is competent.
A final order as contemplated by section 109, C.P.C. must be one which affects finally the rights of the parties, or decides finally any question directly at issue in the case in respect of the rights of any of the parties.
The test is whether the judgment or order finally disposes of the rights of the parties. The mere fact that the order decides an important and even vital issue is by itself not material unless the decision puts an end to the suit. The finality must thus be finality in relation to the suit.
The word ‘decree’ in Art. 133 of the Constitution is not qualified by the words “preliminary” or “final” and leave to appeal can be given against a preliminary decree for accounts. The test for determining the finality of an order is whether the judgment or order finally disposes of the rights of the parties in relation to the suit and not whether further proceedings have to be taken before the suit can be completely disposed of and a preliminary decree satisfies this test.
An order dismissing an application for setting aside an order of dismissal for default is not a final order within the meaning of Art. 133 and such an order cannot be said to be interlocutory also. The order refusing to revive the appeal did not, standing by itself, affect the rights of the parties.
Those rights had been disposed of by the dismissal of the appeal for want of prosecution; the order complained of only refused to allow the matter to be reagitated. It is an order relating to procedure and not to the merits of the appeal.
An order removing or appointing a receiver or a provisional liquidator does not decide the rights of the parties. As a general rule interlocutory orders cannot form the subject for review by the Supreme Court. An order remanding a suit to the original court for disposal on the merits is neither a decree nor a final order.
An order of remand does not finally dispose of the rights of the parties and leave to appeal to the Supreme Court cannot be given. The suit despite the order of remand is a live suit. Similarly, an order of the High Court remanding an executing petition (holding that it was not barred by time) for further hearing and disposal by the lower court is not a final order.
A “final order” within the meaning of section 109, C.P.C. is one deciding finally any question at issue in the case of the rights of any of the parties. An order appointing or refusing to appoint a provisional liquidator does not decide the right of the parties although the decision of that question will have an effect upon the liquidation proceedings. Such an order is not final but only an interlocutory order.
The order of the judge appointing an ad interim receiver is not a judgment within the meaning of that term in clause 10 of the Letters patent.
For leave to appeal to the Supreme Court under Art. 133 of the Constitution the applicants have to establish that it is a judgment, decree or final order. It has been held now finally that the words ‘judgment, decree or final order’ in S. 205 of the Government of India Act and in clause 30 of the Letters patent mean the order finally determining the rights of the parties.
Applications for leave to appeal to the Privy Council were, as also to the Supreme Court are, only entertained against orders that have finally decided the matter pending in the lower courts and no certificate is granted in cases when the rights of the parties have yet to be determined and the order is merely an interlocutory order.
Procedure in appeals to Supreme Court:
The party desiring to appeal to the Supreme Court should apply by petition to the court whose decree is complained of, viz. the High Court. [Order XLV, Rule 2 (1)]. Every petition under sub-rule (1) shall be heard as expeditiously as possible and an endeavour shall be made to conclude the disposal of the petition within sixty days from the date on which the petition is presented to the Court under sub-rule (1). [Order XLV, Rule 2 (2)]. Every petition should state the grounds of appeal and pray for a certificate—(i) that the case involves a substantial question of law of general importance, and (ii) that in the opinion of the Court the said question needs to be decided by the Supreme Court. (Order XLV, Rules 2 and 3).
Upon receipt of such petition, the High Court directs notice to be served on the opposite party to show cause why they said certificate should not be granted. After the parties have been heard, the certificate may either be refused or granted. Where the certificate is refused the petition is dismissed. (Order XLV, Rule 6).
Where it is granted, the applicant should, within 90 days, or such further period, not exceeding 60 days, from the date of the decree complained of, or within six weeks of the date of the granting of the certificate, whichever is the later date, furnish security in cash or in Government securities for the costs of the respondent, and deposit the amount required to defray the expenses of translating, transcribing, indexing, printing and transmitting to the Supreme Court a copy of the record of suit.
Where such security has been, furnished and deposit made, the Court shall declare the appeal admitted, give notice thereof to the respondent, transmit to the Supreme Court under the seal of the Court a correct copy of the said record and give to either party authenticated copies of any of the papers in the suit on his paying the reasonable expenses incurred in preparing them. (Order XLV, Rules 7 and 8).
On May 3, 1982, the Supreme Court abolished the practice of depositing security for admission of petitions.
Notwithstanding the grant of a certificate for the admission of any appeal, the decree appealed from shall be unconditionally executed unless the Court otherwise directs. (Order XLV, Rule 13).
Special leave to appeal as an indigent person:
A petition for special leave to appeal as an indigent person has to be made to the Supreme Court. The High Court has no power to grant such leave. Such petition shall be accompanied by an affidavit from the petitioner stating that he is not entitled to property worth Rs. 1,000/- other than the property exempt from attachment in execution of a decree, and the subject-matter of the intended appeal, and that he is unable to provide sureties and pay court fees, and also by a certificate of counsel that the petitioner has reasonable ground of appeal. The other rules relating to appeals by indigent persons as provided in the Code apply mutatis mutandis to petitions for special leave to appeal as an indigent person.
Procedure to enforce orders of the Supreme Court:
A person desiring to obtain execution of any decree or order of the Supreme Court has to apply by petition, accompanied by a certified copy of the decree passed or order made in appeal and sought to be executed, to the court from which appeal to the Supreme Court was preferred, i.e., the High Court. Such Court shall transmit the order of the Supreme Court to the Court which passed the first appealed from, or such other court as the Supreme Court may direct giving such directions as may be required for the execution of the same. (Order XLV, Rule 15).
Appeal from Order relating to execution:
The orders made by the court which executes the decree or order of the Supreme Court relating to such execution, shall be appealable in the same manner and subject to the same rules as the orders of such Court relating to the execution of its own decrees. (Order XLV, Rule 16).