Civil

Regular Second Appeal under Section 100 CPC

A Regular Second Appeal is a memorandum filed before the High Court to challenge the judgment and decree of a first appellate court. It is not a re-evaluation of facts but a challenge confined strictly to substantial questions of law arising from the appellate judgment.

This appeal is filed under Section 100 read with Order XLII of the Code of Civil Procedure, 1908. The High Court hears the matter only after formulating the substantial question of law, and the appeal cannot proceed on any other ground.

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Governing law
CPC ss.100-103 r/w Order XLII; Limitation Act 1963 Art.116
Sections
s. 100s. 101s. 102s. 103s. OXLII
Filed before
High Court only

When this is the right filing

  • When the judgment of the first appellate court (such as a District Court) raises a substantial question of law that is debatable, unsettled, or materially affects the rights of the parties.
  • When a finding of fact is challenged on the ground that it is based on no evidence, is perverse, or results from a misapplication of a legal principle.
  • When the decree under appeal is a 'first appeal' decree for limitation purposes, requiring filing within the period prescribed under Article 116 of the Limitation Act, 1963.
  • Do not use this filing to re-argue questions of fact or to seek a third factual review of evidence. A second appeal does not lie on facts alone.

What the court looks for

  • A precise and self-contained statement of the substantial questions of law, as mandated by Section 100(3) CPC.
  • A clear demonstration of how each stated question of law arises directly from the judgment of the first appellate court.
  • A memorandum that does not merely challenge the correctness of factual findings but identifies a specific legal error in the appreciation of evidence.
  • Compliance with the structure under Order XLI Rule 1 CPC, including a synopsis, list of dates, and a prayer for stay where applicable.

The structure the court expects

The components of the filed format, in the order they appear. LexPilot fills every one of them from your facts and papers.

  1. 1Index
  2. 2Court fee
  3. 3Memo of parties
  4. 4Synopsis
  5. 5Substantial questions of law
  6. 6List of dates & events
  7. 7Facts
  8. 8Grounds
  9. 9Prayer
  10. 10Affidavit in support
  11. 11Annexures
  12. 12Vakalatnama
How it opens
[synopsis] was decided by the learned [trial court] on [impugned date tc] ([trial court outcome]); the first appellate court — the learned [first appellate court] — decided [fa case no] on [fa date], [first appeal outcome]; the impugned judgment of the first appellate court involves a SUBSTANTIAL QUESTION OF LAW as set out below; the present second appeal under Section 100 CPC lies to this Hon'ble High Court on…

Bracketed items are filled from your case.

Frequently asked questions

What is the difference between a first appeal and a second appeal?

A first appeal under Section 96 CPC allows a court to re-examine questions of fact and law. A second appeal under Section 100 CPC is restricted to substantial questions of law only, and the High Court cannot interfere with findings of fact unless a legal error is shown.

What happens if the memorandum does not state a substantial question of law?

The appeal fails at the threshold. Section 100(3) CPC mandates that the memorandum must state the substantial question of law involved. The High Court formulates the question at admission, but it must first be pleaded by the appellant.

Can a second appeal be filed against an order, or only against a decree?

A second appeal under Section 100 CPC lies against a 'decree' passed in a first appeal. The term 'decree' is defined in Section 2(2) CPC, and the appeal must be against a conclusive determination of rights that qualifies as a decree.

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