Does a second appeal lies against an appellate decree passed ex parte? Give reasons and also relevant provisions on this point.

Question: Does a second appeal lies against an appellate decree passed ex parte? Give reasons and also relevant provisions on this point. [UPCJ 2000, JK. 2016, B. J 2011, BIHAR APO 2014]

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Answer

Section 100 (2) speaks that an appeal may lie under this section from an appellate ‘decree passed ex parte‘.

Section 100 of the Code of Civil Procedure, 1908 deals with the law relating to ‘second appeal’. Section 100 of the Code as amended by the Amendment Act of 1976 declares that 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.

Such appeal lies also against an appellate decree passed ex parte. The appellant has to precisely state in the memorandum of appeal the substantial question of law involved in the appeal. Where the High Court is satisfied that a substantial question of law is involved in the case, it shall formulate such question.

The High Court can hear the appeal on the question so formulated. It, however, permits the respondent (opposite party) to argue at the hearing of the appeal that the question formed framed by the court as a substantial question of law does not involve such question. But the High Court has the power to hear the appeal on any other substantial question of law, not formulated by it if it is satisfied that the case involves such question. The High Court, however, is required to record reasons for such satisfaction.

The amendment made in Section 100 has drastically changed and on any of the three grounds considerably curtailed the scope of a second appeal. Under the old section, second appeals were liberally interpreted by High Courts, resulting in a plethora of conflicting judgments.

The Law Commission rightly observed

“It appears that the wide language of Section 100 and the somewhat liberal interpretation placed judicially on it have practically resulted in giving a goodbye to the basic principle that on questions of fact decisions of courts of the first instance would be final subject to one appeal.”

After the amendment in Section 100, the following consequences ensued

1. The High Court must be satisfied that the case involves a substantial question of law;
2. The memorandum of appeal must precisely state such question;
3. The High Court at the time of admitting the appeal should formulate such question;
4. The appeal shall be heard only on that question;
5. At the hearing of the appeal, the respondent can argue that the case does not involve such question;
6. The High Court is, however, empowered to hear the second appeal on any other substantial question of law, not formulated by it, if it is satisfied that the appeal involves such question. The High Court, however, has to record reasons for doing so.

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