Code of Civil Procedure, 1908 | First Appeals

Section 98 CPC: Decision Where Appeal Is Heard by Two or More Judges

Section 98 of the Code of Civil Procedure, 1908 explains how a civil appeal is decided when heard by a Bench of two or more judges, including what happens when judges disagree and when a point of law may be referred to another judge.

Key rule: The majority opinion ordinarily determines the appeal. If no majority supports varying or reversing the decree under appeal, that decree is confirmed, subject to the statutory proviso and applicable High Court provisions.

Text of Section 98 CPC - Decision where appeal heard by two or more Judges

(1) Where an appeal is heard by a Bench of two or more Judges, the appeal shall be decided in accordance with the opinion of such Judges or of the majority (if any) of such Judges.

(2) Where there is no such majority which concurs in a judgment varying or reversing the decree appealed from, such decree shall be confirmed:

Provided that where the Bench hearing the appeal is composed of two or other even number of Judges belonging to a Court consisting of more Judges than those constituting the Bench and the Judges composing the Bench differ in opinion on a point of law, they may state the point of law upon which they differ and the appeal shall then be heard upon that point only by one or more of the other Judges, and such point shall be decided according to the opinion of the majority (if any) of the Judges who have heard the appeal, including those who first heard it.

(3) Nothing in this section shall be deemed to alter or otherwise affect any provision of the Letters Patent of any High Court.

Meaning and legal effect of Section 98

Section 98(1): Decision by majority

When a Bench of two or more judges hears an appeal, the judgment follows the opinion shared by all judges or by a majority. For example, on a three-judge Bench, if two judges agree that the appeal should be allowed and one dissents, the majority view prevails.

Section 98(2): No majority for reversing the decree

If the judges do not reach a majority in favour of varying or reversing the decree appealed against, the decree stands confirmed under the general rule. In a two-judge Bench, an equal division may therefore result in confirmation, subject to the point-of-law reference mechanism and any applicable Letters Patent or other governing provisions.

Proviso to Section 98(2): Reference of a point of law

Where a Bench consisting of an even number of judges is part of a court with additional judges, and the Bench differs on a point of law, the judges may formulate that point for hearing by one or more other judges. The referred question is decided according to the majority opinion of all judges who heard it, including the original Bench. The reference is confined to the stated point of law; it is not automatically a complete rehearing of the appeal.

Section 98(3): High Court Letters Patent

Section 98 does not override applicable provisions of a High Court's Letters Patent. The court's governing charter and procedural rules must therefore also be considered when determining how a difference of opinion is resolved.

Important legal terms

Appeal: A statutory proceeding asking a superior or appellate court to examine a decision of a lower court.
Bench: Two or more judges sitting together to hear and decide a case.
Majority opinion: The view supported by more than half of the judges deciding the relevant issue.
Decree: A formal expression of adjudication conclusively determining rights of parties regarding matters in controversy, as defined in Section 2(2) CPC.
Point of law: A legal question concerning the interpretation or application of law, distinguished from a purely factual disagreement.
Letters Patent: A charter instrument governing certain High Courts and their jurisdiction or procedure, where applicable.

Practical illustrations

Three judges, 2-1 majority: Two judges decide to reverse a trial court decree; the appeal is decided according to that majority.
Two judges disagree: One would allow the appeal and the other would dismiss it. The default confirmation rule may apply unless the legal question is referred under the proviso or another applicable provision governs.
Difference on interpretation of a statute: An eligible even-numbered Bench may state the disputed legal point for determination by another judge or judges under the proviso.

Section 98 operates in the framework of Section 96 CPC (appeals from original decrees), Section 97 CPC (failure to appeal a preliminary decree) and Section 100 CPC (second appeals). Procedural requirements for appeals are principally found in Order XLI CPC, subject to applicable court rules.

For the authoritative legislation and subsequent amendments, consult the India Code official legislation portal and search for the Code of Civil Procedure, 1908 (Act 5 of 1908). Relevant High Court rules and Letters Patent should also be checked in a particular case.

Frequently asked questions

What happens if two judges disagree in a civil appeal?

Under Section 98(2), the decree appealed from is ordinarily confirmed where no majority favours changing it. An eligible disagreement on a point of law may be referred to another judge or judges under the proviso.

Can a third judge hear the entire appeal?

The proviso to Section 98(2) contemplates hearing the stated point of law only. Other procedural arrangements may depend on the court's governing rules and applicable legal provisions.

Does Section 98 apply regardless of High Court Letters Patent?

No. Section 98(3) expressly preserves the operation of applicable Letters Patent provisions.

Legal information is general in nature. Court-specific rules, applicable amendments and the procedural history of an appeal can affect the outcome.