S 100 CPC – Second Appeal To Expunge ‘Adverse Findings’

Can a second appeal be filed solely with a prayer to expunge some findings made in the judgment by the First Appellate Court.?

Section 100 CPC reads as follows: (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. Section 102 further states that ‘No second appeal shall lie except on the ground mentioned in section 100.’

In Kollipara Sreeramulu vs Penumudi Suryanarayana 1992 (3) ALT 222 , such a second appeal was filed by a defendant. The High Court dismissed the appeal holding that in the absence of any decree being granted against the defendant either by the trial court or the lower appellate court, the provisions of Section 100 of the Code of Civil Procedure cannot be invoked by the defendant to set aside mere observations or findings made in the judgment of the lower court or the appellate court.

This view is seen upheld in Deva Ram and Another vs. Ishwar Chand and Another, (1995) 6 SCC 733, wherein it was observed thus: “Section 100 provides that an appeal shall lie to the High Court from every decree passed in appeal. Thus sine qua non in both the provisions is the “decree” and unless the decree is passed, an appeal would not lie under Section 96 nor would it lie under Section 100 of the Civil Procedure Code. Similarly, an appeal lies against an “order” under Section 104 read with Order 43 Rule 1 of the Civil Procedure Code where the “orders” against which appeal would lie have been enumerated. Unless there is an “order” as defined in Section 2(14) and unless that “order” falls within the list of “orders” indicated in Order 43, an appeal would not lie. Thus, an appeal does not lie against mere “findings” recorded by a court unless the findings amount to a “decree” or “order”. Where a suit, is dismissed, the defendant against whom an adverse finding might have come to be recorded on some issue, has no right of appeal and he cannot question those findings before the appellate court.”

In Harchandra Das v. Bholanath Day (1935) 62 Cal 701, the High Court of Calcutta, held that though under the Code of Civil Procedure there can be no appeal as against a mere finding, “it may be taken to be the view of courts in India generally, that a party to the suit adversely affected by a finding contained in a judgment, on which a decree, is based, may appeal; and the test applied in some of the, cases for the purpose of determining whether a party has been aggrieved or not was whether the finding would be res judicata in other proceedings”. 

The Full Bench of the High Court of Patna in Arjun Singh & Anr. v. Tara Das Ghosh & Anr. [A.I.R. 1974 Patna 1] have taken the view that an appeal would not lie against mere adverse finding unless such finding would constitute resjudicata in subsequent proceedings

This judgment in Harchandra Das, was taken note of by the Supreme Court in Ganga Bai vs. Vijay Kumar and Others, (1974) 2 SCC 393, in which it held that, under the Code of Civil Procedure, an appeal lies only as against a decree or as against an order passed under rules from which an appeal is expressly allowed by Order 43, Rule 1 and thus no appeal can lie against a mere finding for the simple reason that the Code does not provide for any such appeal.  Regarding the observation made in Harchandra Das, the court said: It is not necessary here to determine whether the view of the Calcutta High Court is correct.

However, in Pawan Kumar Gupta v. Rochiram Nagdeo [(1999) 4 SCC 243], it was observed that “it is not correct to say that the party (defendant) has no right of appeal against such a decision on an issue though the suit was ultimately recorded as dismissed.”