Appeals from Orders

Order XLIII Rule 1: the orders that are appealable

Rule 1 lists the orders under the rules from which an appeal lies. The principal ones, and the ones worth being able to name, are these.

• an order under Order VII Rule 10 returning a plaint to be presented to the proper court
• an order under Order IX rejecting an application to set aside a dismissal for default, or to set aside an ex parte decree, under Rules 9 and 13
• an order under Order XI Rule 21 dismissing a suit or striking out a defence for failure to comply with discovery
• an order under Order XXI Rule 34 on objections to a draft document
• an order under Order XXI Rules 72 or 92 setting aside or refusing to set aside a sale
• an order rejecting an application under Order XXII Rules 9 or 10 to set aside an abatement or dismissal, or for leave to continue a suit on devolution of interest
• an order under Order XXV Rule 2 rejecting an application to set aside a dismissal for failure to furnish security for costs
• an order under Order XXXIII Rule 5 or 7 rejecting an application for permission to sue as an indigent person
• an order under Order XXXV Rules 3, 4 or 6 in an interpleader suit
• an order under Order XXXVIII, attachment or arrest before judgment
• an order under Order XXXIX Rules 1, 2, 2A, 4 or 10, granting, refusing, or dealing with a temporary injunction or an interim order
• an order under Order XL Rule 1 or 4, appointing a receiver or enforcing his duties
• an order under Order XLI Rules 19, 21, 23 or 23A, refusing to readmit or rehear an appeal, or remanding a case
• an order under Order XLVII Rule 4 granting an application for review

A pattern is worth pointing out, because it makes the list learnable rather than arbitrary. Almost every entry is an order that either ends the proceeding for the party affected, as with a rejected application to set aside a dismissal, or has an immediate and serious effect on rights or property, as with an injunction, an attachment or a receiver. Orders that merely regulate the progress of a suit are absent.

Rule 1A(1) deals with a party who did not appeal an appealable order: where an appeal is filed against a decree passed in a suit after the recording of a compromise or refusal to record a compromise, it is open to the appellant to contest the decree on the ground that the compromise should or should not have been recorded.

Rule 1A(2) is the more useful provision: in an appeal against a decree passed in a suit after refusal by the Court to set aside an ex parte decree or the like, it is open to the appellant to contest the decree on the ground that the application ought to have been allowed.

Rule 2: the rules of Order XLI apply, so far as may be, to appeals from orders.

Orders that are not appealable: section 105

Section 105(1): save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal.

That second half is the answer to the obvious complaint. A party aggrieved by a non-appealable interlocutory order is not without remedy; he keeps the point and raises it in the appeal from the decree.

Section 105(2) is the exception that costs litigants their point: notwithstanding anything in sub-section (1), where any party aggrieved by an order of remand made after the commencement of this Code from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness.

So a remand order is appealable, and a party who does not appeal it cannot attack it later. That mirrors section 97 on preliminary decrees exactly, and the two should be learnt together: an appealable step not appealed is lost. See [Appeals from Original Decrees].

Section 106: where an appeal from an order is allowed, it shall lie to the Court to which an appeal would lie from the decree in the suit in which the order was made, or, where the order is made by a Court in the exercise of appellate jurisdiction or by a High Court, to the High Court.

Appeal, review and revision, in one sentence each

The three are constantly confused, and the full treatment of the last two is in the next chapter.

Appeal: to a higher court, against a decree or a listed order, on facts and law in a first appeal and on a substantial question of law in a second.

Review: to the same court that passed the decree or order, on the limited grounds in section 114 and Order XLVII.

Revision: to the High Court, over a subordinate court, and only on jurisdictional error under section 115.

See [Reference, Review and Revision].

A worked example

Jatin's suit is pending. Several orders are made along the way.

The court refuses his application for a temporary injunction. Appealable, under Order XLIII Rule 1 read with section 104(1)(i).

The court appoints a receiver. Appealable, Order XL Rule 1 being in the Order XLIII list.

The court refuses to allow him to amend his plaint. Not in the list, so no appeal lies. Under section 105(1) he may set the error forth as a ground of objection in the memorandum of appeal from the eventual decree.

The court rejects his application to set aside an ex parte decree under Order IX Rule 13. Appealable, and if he does not appeal, Order XLIII Rule 1A(2) still lets him contest the decree on that ground in an appeal against the decree.

The first appellate court remands the case. Appealable. But section 105(2): if he does not appeal the remand order, he is precluded from disputing its correctness afterwards.

He is fined under a provision of the Code. Appealable under section 104(1)(h). But had he been arrested in execution of a decree, that clause would not apply.

He loses the appeal against the injunction order and wants to appeal again. Section 104(2): no appeal lies from an order passed in appeal under the section.

Where does an appeal from an order go? Section 106: to the court to which an appeal would lie from the decree in that suit, or to the High Court where the order was made in appellate jurisdiction or by a High Court.

What it does not mean

Orders are not generally appealable. Section 104(1) makes the list exhaustive, subject to express provision elsewhere.

A non-appealable order is not unchallengeable. Section 105(1) preserves it as a ground of objection in the appeal from the decree.

A remand order is not safe to ignore. Section 105(2) precludes a later challenge.

There is no second appeal from an order. Section 104(2).

An arrest in execution of a decree is not appealable under section 104(1)(h). It is expressly excepted.

Quick revision

Section 104(1): appeals lie from orders under section 35A (compensatory costs, and then only on the ground that no order or a lesser order should have been made), sections 91 and 92 refusing leave, section 95, orders imposing a fine or directing arrest or detention except in execution of a decree, and any order under the rules from which an appeal is expressly allowed. Section 104(2): no appeal from an order passed in appeal under this section.

Order XLIII Rule 1: the working list, including return of a plaint, refusal to set aside a dismissal or an ex parte decree, striking out a defence for non-discovery, setting aside or refusing to set aside an execution sale, refusal to set aside an abatement, refusal of leave to sue as an indigent person, interpleader orders, attachment and arrest before judgment, injunctions, receivers, remand, and the grant of a review. Rule 1A: a party may contest a decree on the ground that a refused application should have been allowed. Rule 2: Order XLI applies so far as may be.

Section 105(1): no appeal from other orders, but any error in them affecting the decision may be taken as a ground of objection in the appeal from the decree. Section 105(2): an unappealed order of remand cannot afterwards be disputed. Section 106: the appeal lies to the court to which an appeal from the decree would lie, or to the High Court.

Test yourself

1. From which orders does an appeal lie? Only from those specified in section 104(1) and, through clause (i) of that sub-section, those listed in Order XLIII Rule 1. Section 104(1) provides that, save as otherwise expressly provided by the Code or any law in force, no appeal lies from any other order.

2. Name five appealable orders under Order XLIII Rule 1. An order returning a plaint under Order VII Rule 10; an order rejecting an application to set aside an ex parte decree under Order IX Rule 13; an order granting or refusing a temporary injunction under Order XXXIX; an order appointing a receiver under Order XL Rule 1; and an order of remand under Order XLI Rule 23 or 23A. An order granting an application for review under Order XLVII Rule 4 is also appealable.

3. What is the remedy against a non-appealable order? Under section 105(1), where a decree is appealed from, any error, defect or irregularity in any order affecting the decision of the case may be set forth as a ground of objection in the memorandum of appeal.

4. A party does not appeal an order of remand. Can he challenge it later? No. Section 105(2) provides that where a party aggrieved by an appealable order of remand does not appeal from it, he is thereafter precluded from disputing its correctness.

5. Does a second appeal lie from an order? No. Section 104(2) provides that no appeal shall lie from any order passed in appeal under that section.

6. To which court does an appeal from an order lie? Under section 106, to the Court to which an appeal would lie from the decree in the suit in which the order was made; and where the order was made by a Court in the exercise of appellate jurisdiction or by a High Court, to the High Court.