Sections 103 and 104 of the Code of Civil Procedure, 1908

Section 103 CPC deals with the limited power of the High Court to determine an issue necessary for disposal of a second appeal when the evidence on record is sufficient. Section 104 identifies the orders from which an appeal lies and restricts appeals from other orders unless expressly permitted by the Code or another law.

Section 103 CPC - Power of High Court to determine issues of fact

Section 103. Power of High Court to determine issues of fact.

In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal,-

(a) which has not been determined by the lower Appellate Court or both by the Court of first instance and the lower Appellate Court, or

(b) which has been wrongly determined by such Court or Courts by reason of a decision on such question of law as is referred to in section 100.

Section 103 is connected with Section 100 CPC. It does not create a general power to reappreciate facts in every second appeal. The statutory power arises where the evidence already on record is sufficient and the issue is necessary for disposal of the appeal.

Key point: Section 103 enables the High Court to decide specified issues necessary for the disposal of a second appeal without a remand when the statutory conditions are satisfied and the evidence on record is sufficient.

Section 104 CPC - Orders from which appeal lies

Section 104. Orders from which appeal lies.

(1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders:-

[Clauses (a) to (f) omitted]

(ff) an order under section 35A;

(ffa) an order under section 91 or section 92 refusing leave to institute a suit of the nature referred to in section 91 or section 92, as the case may be;

(g) an order under section 95;

(h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of any person except where such arrest or detention is in execution of a decree;

(i) any order made under rules from which an appeal is expressly allowed by rules;

Provided that no appeal shall lie against any order specified in clause (ff) save on the ground that no order, or an order for the payment of a less amount, ought to have been made.

(2) No appeal shall lie from any order passed in appeal under this section.

Section 104 creates a limited statutory right of appeal from orders. The section must also be read with the relevant provisions of the Code, particularly the rules that expressly make particular orders appealable.

Important: The right of appeal is statutory. Section 104 itself states that, except where the Code or another applicable law expressly provides otherwise, an appeal does not lie from other orders. State amendments and special enactments should be checked where relevant.

Meaning and practical effect of Sections 103 and 104 CPC

What is the power of the High Court under Section 103 CPC?

In a second appeal, the High Court may decide an issue necessary for disposal of the appeal where the evidence on record is sufficient and the issue falls within clause (a) or clause (b) of Section 103.

What orders are appealable under Section 104 CPC?

Section 104 expressly recognizes appeals from the categories of orders set out in subsection (1), including certain orders under Sections 35A, 91, 92 and 95, orders imposing a fine or directing specified arrest or detention, and orders made under rules from which an appeal is expressly allowed.

Is a further appeal available from an appellate order under Section 104?

No. Section 104(2) provides that no appeal shall lie from an order passed in appeal under Section 104.

Official reference

For the authoritative central text and amendments, refer to the Government of India publication of the Code of Civil Procedure, 1908 on India Code.

Official Code of Civil Procedure, 1908 - India Code