First and Second Appeal Under CPC: Sections 96-100, Substantial Question of Law and Supreme Court Cases
By Advocate Jyoti Saxena | LLB, LLM, CS | Bar Council of Rajasthan | Last Updated: September 2026
An appeal is not a second shot at arguing the same facts. It is a review of whether the court below applied the law correctly — and in a second appeal, that review is even narrower. Getting this distinction wrong in a Mains answer costs marks. The right to appeal is purely statutory — there is no inherent right of appeal. If the CPC does not give you the right, you cannot appeal, even if you believe the judgment is wrong. Sections 96 to 100 of the CPC lay out the entire scheme for first and second appeals in civil matters — who can file, before which court, on what grounds, and what the appellate court can actually do.
Section 96 — First Appeal
Section 96(1) provides that an appeal shall lie from every decree passed by any court exercising original jurisdiction to the court authorised to hear appeals from the decisions of such court. Two things must be present: a decree (not an order), and original jurisdiction of the court that passed it. An appeal from a Sessions Court decree goes to the High Court. An appeal from a District Court decree goes to the High Court. The appeal goes to the court immediately above.
Section 96(2) bars an appeal from a decree passed by a court with the consent of the parties — a consent decree. Since both parties agreed to the decree, neither can challenge it by appeal. This is a frequently tested MCQ point. Section 96(3) bars an appeal from a decree passed in a small cause court on questions of fact. Section 96(4) is the ex parte decree provision — no appeal lies from an ex parte decree where the defendant did not appear, but the defendant can apply to have the decree set aside under Order 9 Rule 13 instead.
| Section 96 CPC — When First Appeal Does NOT Lie (Exam MCQ): Section 96(2): Consent decree — both parties agreed — no appeal Section 96(3): Small cause court decree — no appeal on facts Section 96(4): Ex parte decree — defendant must apply under Order 9 Rule 13 to set aside, not file appeal Section 98: Where appeal dismissed on majority — no further appeal on same grounds Section 102: Second appeal barred where original suit value does not exceed Rs. 25,000 Key rule: Appeal is a statutory right — if Section 96 does not give it, there is no right of first appeal, regardless of how wrong the decree appears. |
Powers of the First Appellate Court — Section 107 and Order 41
The first appellate court has the widest powers in the entire appeals framework. Under Section 107 CPC read with Order 41, the first appellate court can: determine a case finally, remand the case, frame issues and refer them for trial, take additional evidence or require it to be taken. Most importantly, the first appellate court is the last court of facts — it can reappreciate the entire evidence, come to its own findings on fact, and substitute its own conclusions for those of the trial court.
Order 41 Rule 31 requires the appellate court to record its reasons for each finding — the appellate court cannot simply say “we agree with the trial court” without recording its own reasons. The Supreme Court in Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179 held that the first appellate court must independently apply its mind to the evidence and record its own findings. A first appellate court that merely endorses the trial court’s conclusions without independent examination has not fulfilled its duty.
Section 97 — Appeal from Preliminary Decree
Section 97 provides that where a party aggrieved by a preliminary decree does not appeal from that decree, they shall be precluded from disputing its correctness in any appeal from the final decree. This is the “now or never” provision for preliminary decrees — if you do not appeal the preliminary decree when it is passed, you lose the right to challenge its findings when the final decree comes. This catches many candidates in Mains problem questions where a party tries to attack the preliminary decree at the final appeal stage.
Section 99 — No Reversal on Technical Grounds
Section 99 provides that no decree shall be reversed or substantially varied in appeal on account of any misjoinder or non-joinder of parties or causes of action, or any error, defect or irregularity in any proceedings in the suit which does not affect the merits of the case or the jurisdiction of the court. The proviso states that this protection does not apply to non-joinder of a necessary party. The distinction — a proper party vs a necessary party — is directly tested in Prelims.
Section 100 — Second Appeal to the High Court
Section 100 provides that a second appeal lies 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. This is the gateway — no substantial question of law, no second appeal. The High Court must formulate the substantial question of law at the time of admission. Section 100(5) provides that the respondent can raise additional questions of law at the hearing, even if not admitted as such.
| What is a “Substantial Question of Law” — Section 100 CPC: State Bank of India v. S.N. Goyal (2008) 8 SCC 92: “Substantial” does not mean important or involving large sums. A question of law is substantial when: (a) It is of general public importance, OR (b) It directly and substantially affects the rights of the parties, AND (c) It has not been finally settled by the Supreme Court or the High Court, OR it is not free from difficulty, OR it calls for a discussion of alternative views. A question already settled by SC — not a substantial question of law. A question of fact — not a substantial question of law. Perverse finding of fact — CAN be treated as question of law. Kondiba Dagadu Kadam v. Savitribai Sopan Gujar (1999) 3 SCC 722: High Court CANNOT reappreciate evidence in second appeal. It cannot substitute its own view of facts for the concurrent finding of the trial court and first appellate court. Exception: Where the finding is perverse — i.e., no reasonable person could arrive at such a finding on the evidence on record. |
Section 102 — Bar to Second Appeal
Section 102 bars second appeals where the subject matter of the original suit is for recovery of money not exceeding Rs. 25,000. This monetary bar was introduced to prevent the High Court from being flooded with small value cases. A suit for Rs. 20,000 cannot travel to the High Court in second appeal regardless of the legal question involved. Note that this bar is on the original suit value — not the decree amount or the amount in dispute in the appeal.
First Appeal vs Second Appeal — Comparison
| Parameter | First Appeal — Section 96 | Second Appeal — Section 100 |
| Filed against | Decree of trial court (original jurisdiction) | Decree of first appellate court |
| Court | Court authorised to hear appeals — usually District Court or High Court | High Court only |
| Grounds | Both questions of fact and questions of law | Only substantial question of law |
| Powers of appellate court | Wide — can reappreciate all evidence, make fresh findings on fact | Narrow — cannot reappreciate facts. Only decides the substantial question of law admitted. |
| Consent decree | No first appeal (Section 96(2)) | Would not arise as no first appeal from consent decree |
| Monetary bar | No monetary bar in Section 96 | Bar for suits not exceeding Rs. 25,000 (Section 102) |
| Perverse finding | Can be corrected as matter of fact | Perverse finding = error of law — High Court can interfere |
| Key SC case | Santosh Hazari (2001) — must independently apply mind to evidence | Kondiba Dagadu Kadam (1999) — cannot reappreciate evidence |
Supreme Court Cases on First and Second Appeal
Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179 — First Appellate Court Duty
The Supreme Court laid down that the first appellate court is the final court of facts. It must independently apply its mind to the evidence on record and record its own reasons for each finding. An appellate court that simply says “we see no reason to interfere with the trial court” without recording its own findings has not acted as a proper first appellate court. The judgment remains the leading authority on the duty of the first appellate court under Order 41 Rule 31.
Kondiba Dagadu Kadam v. Savitribai Sopan Gujar (1999) 3 SCC 722 — Second Appeal Bar
The Supreme Court held that in a second appeal under Section 100 CPC, the High Court has no jurisdiction to interfere with concurrent findings of fact recorded by the trial court and the first appellate court. The High Court cannot reappreciate the evidence and substitute its own view. The only exception: where the finding is perverse — meaning no person acting judicially and properly instructed as to the law could have reached such a finding on the evidence available.
State Bank of India v. S.N. Goyal (2008) 8 SCC 92 — Substantial Question of Law
The Supreme Court defined “substantial question of law” for the purposes of Section 100 CPC. The word “substantial” refers not to the monetary value or importance of the case but to the nature of the legal question. A question is substantial when it is of general public importance or directly affects rights of parties and is not already settled. Courts must be strict in admitting second appeals — not every alleged error of law qualifies as a substantial question of law.
FAQs — First and Second Appeal CPC
What is the difference between first appeal and second appeal under CPC?
A first appeal under Section 96 CPC lies from the decree of a trial court (court exercising original jurisdiction) to the appellate court — usually the District Court or High Court. It can be on both questions of fact and law. The first appellate court has wide powers to reappreciate evidence and record its own findings. A second appeal under Section 100 CPC lies from the decree of the first appellate court to the High Court — but only if a substantial question of law is involved. The High Court cannot reappreciate facts in second appeal. The scope narrows at each level — facts are final after the first appeal.
What is a substantial question of law under Section 100 CPC?
A substantial question of law under Section 100 CPC is one that is of general public importance, or that directly and substantially affects the rights of the parties, and which has not been finally settled by the Supreme Court or the High Court, or is not free from difficulty, or calls for discussion of alternative views. The Supreme Court in SBI v. S.N. Goyal (2008) clarified that “substantial” does not mean the case is important or involves large money — it refers to the nature of the legal question. A question of pure fact — even a wrong finding of fact — is not a substantial question of law unless the finding is perverse.
Can the High Court reappreciate evidence in a second appeal?
No. The High Court cannot reappreciate evidence in second appeal under Section 100 CPC. The first appellate court is the last court of facts. Where both the trial court and the first appellate court have concurrently found on a question of fact, the High Court in second appeal is bound by that finding. The only exception is a perverse finding — where no reasonable person acting judicially could have arrived at such a finding on the available evidence. A finding that the High Court disagrees with is not the same as a perverse finding. This was settled in Kondiba Dagadu Kadam v. Savitribai Sopan Gujar (1999).
Does a second appeal lie from a consent decree?
No second appeal can arise from a consent decree because no first appeal lies from a consent decree under Section 96(2) CPC. Since there is no first appeal, there is no first appellate court decree from which a second appeal can be filed. Consent decrees can only be challenged by a separate suit for setting aside the consent on grounds such as fraud, misrepresentation, or mistake — not by appeal.
Related Articles
→ Res Judicata: Section 11 CPC, Constructive Res Judicata and Judiciary Exam Notes — Final decree after last appeal — res judicata bars further suits on same matter
→ Judgment Writing for Judiciary Exam: Format, Civil and Criminal Examples — First appellate judgment — Order 41 Rule 31 — must record reasons for each finding
→ RJS Online Coaching — Live Classes, Answer Writing and Verified Results — Section 96 and 100 CPC — tested in RJS Mains civil law paper every cycle
→ Best Gujarat Judiciary Coaching — GJS Results — GJS Mains — first and second appeal under CPC directly tested
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Written by Advocate Jyoti Saxena — LLB, LLM, CS, Bar Council of Rajasthan, practising at Jaipur Family Court, Jaipur District Court, and the Rajasthan High Court. Appeal matters — first and second appeals — are part of civil court practice at the district and High Court level. All CPC references verified from the Code of Civil Procedure 1908. SC citations verified from SCC Online. Contact: +91 99290 96546 | jyotijudiciary.com
