Civil Procedure Code, 1908 | Order 45

Order XLV Rule 2 CPC - Application to Court Whose Decree Is Challenged

Order XLV Rule 2 of the Code of Civil Procedure, 1908 governs an application by petition to the court whose decree is challenged when a party seeks to pursue an appeal to the Supreme Court under the certificate procedure. It also directs expeditious consideration of the petition.

Text of Order XLV Rule 2 CPC

The statutory wording above follows the central text of Order XLV Rule 2. Applicable state amendments and court rules should also be checked.

Meaning and scope of Rule 2

Sub-rule (1): Petition to the court whose decree is challenged

A person pursuing the certificate-based route to the Supreme Court must present a petition before the court whose decree is complained of. In the ordinary civil appellate context under Article 133 of the Constitution, this is the relevant High Court. The petition seeks a certificate permitting an appeal and is not itself a direct appeal filed in the Supreme Court.

Sub-rule (2): Endeavour to dispose of the petition within 60 days

The court must hear the petition as expeditiously as possible and endeavour to dispose of it within sixty days of presentation. This is expressed as an objective requiring prompt disposal; the wording does not by itself provide for automatic grant of a certificate or automatic dismissal merely because sixty days have elapsed.

Related legal provisions

• Order XLV Rule 1: For this Order, the expression "decree" includes a final order unless the context requires otherwise.
• Order XLV Rule 3: The petition states the grounds of appeal and requests a certificate that the case involves a substantial question of law of general importance which, in the court's opinion, needs a decision by the Supreme Court. The opposite party is given notice to show cause.
• Section 109 CPC: Addresses appeals to the Supreme Court, subject to the Constitution and applicable Supreme Court rules.
• Article 133 of the Constitution: Provides for civil appeals from High Courts on certification of a substantial question of law of general importance requiring the Supreme Court's decision.
• Article 134A of the Constitution: Governs consideration of certificates for appeal, including an oral application made immediately after the judgment, decree or final order.
• Article 136 of the Constitution: Separately provides for discretionary special leave to appeal; it is not the same as the certificate petition under Order XLV Rule 2.

How the certificate petition is considered

1. Identify the judgment, decree or final order and the applicable route of appeal.
2. Present the petition before the court whose decree is challenged, setting out grounds and requesting the certificate contemplated by Order XLV Rule 3.
3. The court considers the statutory and constitutional certification criteria and the response of the opposite party, where required.
4. If the certificate is refused, Order XLV Rule 6 provides for dismissal of the petition. If granted, the further procedure, including applicable security and record requirements, is governed by the relevant provisions and court rules.

Article 134A also provides a distinct mechanism for seeking a certificate orally immediately after the relevant High Court decision. Parties should consider the applicable High Court rules, Supreme Court Rules and limitation requirements before choosing or pursuing a remedy.

Official legal references

Code of Civil Procedure, 1908 - official India Code PDF

Supreme Court of India - appellate jurisdiction

Constitution of India - Legislative Department

Frequently asked questions

Where is a petition under Order XLV Rule 2 filed?

It is filed in the court whose decree is challenged, ordinarily the High Court in a civil appeal for which a certificate under Article 133 is sought.

Is the 60-day period a strict deadline for granting a certificate?

No. Rule 2(2) requires expeditious hearing and an endeavour to conclude disposal within sixty days; it does not guarantee a certificate within that period.

Does Rule 2 itself allow a direct appeal to the Supreme Court?

No. Rule 2 concerns the petition to the court whose decree is challenged. Supreme Court appellate jurisdiction and the availability of other remedies depend on the Constitution and applicable laws and rules.

Legal information only. Procedural requirements may differ due to applicable amendments and court rules.