Code of Civil Procedure, 1908 | Appeals

Section 108 CPC - Procedure in Appeals from Appellate Decrees and Orders

Section 108 of the Code of Civil Procedure, 1908 extends, as far as applicable, the procedural provisions governing appeals from original decrees to appeals from appellate decrees and to certain appeals from orders. It does not independently create a right of appeal.

Text of Section 108 CPC

Meaning and scope of Section 108

The words "so far as may be" require the provisions for first appeals to be adapted to the nature of the appeal in question. Rules intended for an ordinary first appeal do not automatically override special restrictions on a second appeal or a separate statutory appeal procedure.

Clause (a): Appeals from appellate decrees

An appellate decree is a decree passed by a court while deciding an appeal. A further appeal against it is commonly a second appeal, where maintainable. Section 100 CPC generally permits a second appeal to the High Court only when the case involves a substantial question of law. Section 108 provides procedural continuity; it does not remove that requirement or the statutory bars under Sections 100A, 101 and 102.

Clause (b): Appeals from orders

For an order made under the CPC, or under a special or local law that does not prescribe a different appellate procedure, the provisions governing appeals from original decrees may apply to the extent appropriate. Whether the order is appealable must first be established under Section 104 CPC, Order XLIII Rule 1, or the relevant special law. Section 108 does not make every interlocutory order appealable.

Related CPC provisions and procedural rules

• Section 96: Governs appeals from original decrees, subject to statutory exceptions.
• Section 100: Restricts second appeals to cases involving a substantial question of law.
• Section 101: Excludes second appeals on grounds other than those in Section 100.
• Section 104: Identifies categories of orders from which appeals lie.
• Section 106: Identifies the court competent to hear an appeal from an order.
• Section 107: Specifies powers of appellate courts, subject to prescribed conditions.
• Order XLI: Contains procedural rules for appeals from original decrees, including memorandum, hearing, remand and additional evidence.
• Order XLII Rule 1: Applies the rules of Order XLI, so far as may be, to appeals from appellate decrees; Rule 2 concerns formulation of substantial questions of law.
• Order XLIII: Governs appeals from specified orders; Rule 2 applies Order XLI procedure so far as may be.

Practical illustrations

Second appeal: A district appellate court decides a civil suit appeal. A party seeking to challenge its appellate decree in the High Court must satisfy Section 100. The applicable procedure is informed by Section 108 and Order XLII, not by an unrestricted right to reargue facts.

Appealable order: A court passes an order expressly appealable under Order XLIII Rule 1. The appeal is filed before the competent court under Section 106, and Order XLIII Rule 2 applies relevant Order XLI procedures, subject to applicable rules.

Special law: If another enactment provides its own appellate procedure, the court must examine that enactment before applying CPC provisions. Section 108(b) expressly recognizes a different procedure under special or local law.

Frequently asked questions

Does Section 108 CPC create a right of second appeal?

No. The right of second appeal is governed principally by Section 100 and other applicable restrictions. Section 108 addresses the procedure to be followed where an appeal is otherwise maintainable.

Can every order be appealed under Section 108?

No. An appeal against an order requires an independent statutory basis, such as Section 104 read with Order XLIII Rule 1, or another applicable law.

Does Order XLI apply to second appeals?

Order XLII Rule 1 makes Order XLI applicable, so far as may be, to appeals from appellate decrees. That application remains subject to Section 100 and the rules specifically governing second appeals.

What happens if a special law provides a different procedure?

The special or local law must be examined and its applicable procedure followed. Section 108(b) does not displace an expressly different appellate procedure.

Official legal sources

Consult the Code of Civil Procedure, 1908 on India Code and the India Code official legislation portal for the legislation, amendments and schedules. Court-specific filing rules and any applicable state amendments should also be checked.

Note: This article explains the central CPC framework. Appeal rights, forum, limitation, court fees and procedure can be affected by special statutes, state amendments and applicable High Court rules.