Code of Civil Procedure, 1908 (CPC)
Appeal from a Decree and Appeal from an Order Distinguished
The Code approaches the two in opposite ways. From a decree, an appeal lies as a rule of inclusion: Section 96 gives an appeal from every decree, and the exceptions are stated and few. From an order, it lies as a rule of list: Section 104 with Order XLIII Rule 1 names the orders that are appealable and provides that an appeal lies from no others. Whether a decision is a decree or an order therefore settles the route of challenge entirely. These notes compare the two.
Every decree, against only the orders in the list
1. The Two Rules
§ Section 96(1) and Section 104(1) Section 96(1). Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court. Section 104(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 — and the section then lists them, clause (i) carrying in any order made under rules from which an appeal is expressly allowed by rules, which imports the whole of Order XLIII Rule 1. |
§ Three consequences of the difference • Identifying the decision comes first. Because clause (a) of Section 2(2) excludes from the definition of decree any adjudication from which an appeal lies as an appeal from an order, a decision cannot be both. Placing it in one category settles everything else. • The exceptions run in opposite directions. From a decree, the exceptions are stated: a consent decree under Section 96(3), and small-cause decrees below the value under Section 96(4). From an order, the inclusions are stated, and everything unstated is excluded. • Only one of them carries a second appeal. Section 100 allows a second appeal from an appellate decree on a substantial question of law; Section 104(2) provides that no appeal lies from any order passed in appeal under the section. |
2. The Two Compared
Basis | Appeal from a decree | Appeal from an order |
|---|---|---|
Source | Section 96 | Section 104 with Order XLIII Rule 1 |
The rule | From EVERY decree, with stated exceptions | From only the orders in the list, and from NO OTHERS |
Exceptions or inclusions | Section 96(3): consent decrees; Section 96(4): small-cause decrees below the value, except on a question of law | The list itself: returning a plaint, refusing to set aside a dismissal or ex parte decree, arrest, attachment, injunction, receiver, remand, and the rest |
Second appeal | Available under Section 100 on a substantial question of law | Section 104(2): NO appeal from an order passed in appeal |
Procedure | Order XLI in full | Order XLIII Rule 2: the rules of Order XLI apply, so far as may be |
Limitation | Articles 116 and 117: ninety days to a High Court, thirty to any other | The same articles apply |
Merger | The decree of the lower court merges in the appellate decree | The doctrine applies to the order as decided in appeal, and no further appeal lies |
If not appealed | The decree becomes final between the parties | Section 105(1): the objection may still be taken in the appeal from the decree, except for a remand order under Section 105(2) |
3. Orders Outside the List: Section 105
§ Section 105, CPC 1908 (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. (2) Notwithstanding anything contained in sub-section (1), where any party aggrieved by an order of remand from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness. |
i. The objection survives. A party aggrieved by an order refusing an amendment, rejecting a document, or refusing to summon a witness waits and takes the point in his appeal against the decree.
ii. It must have affected the decision. Sub-section (1) requires the error, defect or irregularity to affect the decision of the case, which aligns with Section 99.
iii. And it must be set out in the memorandum, on the ordinary discipline of Order XLI Rules 1(2) and 2.
iv. Remand is the exception. An appealable order of remand must be challenged when it is made, because otherwise a retrial spanning years might be undone afterwards.
v. Revision and Article 227 remain, in a proper case, where the order suffers from a jurisdictional error, though neither is a substitute for the appeal.
4. Worked Examples
The decision | Decree or order? | The route |
|---|---|---|
A suit dismissed after trial | Decree | Appeal under Section 96; second appeal under Section 100 |
A plaint rejected under Order VII Rule 11 | A deemed decree | Appeal under Section 96; and a fresh plaint remains open under Order VII Rule 13 |
A plaint returned under Order VII Rule 10 | Order | Appeal under Order XLIII Rule 1(a) |
A suit dismissed for default under Order IX Rule 8 | Neither: excluded by clause (b) of Section 2(2) | Application under Order IX Rule 9; appeal from an order refusing it, under Order XLIII Rule 1(c) |
An order granting a temporary injunction | Order | Appeal under Order XLIII Rule 1(r); no second appeal |
An order refusing an amendment of pleadings | Order, and not in the list | Not appealable; the objection is taken in the appeal from the decree under Section 105(1) |
An order of remand under Order XLI Rule 23 | Order, and in the list | Appeal under Order XLIII Rule 1(u); and Section 105(2) requires it to be taken then |
5. Landmark Points
- Section 96(1). An appeal lies from every decree of a court exercising original jurisdiction, save where otherwise expressly provided.
- Section 104(1). An appeal lies from the orders named and from no other orders, clause (i) importing the whole of Order XLIII Rule 1.
- Section 2(2), clause (a). An adjudication appealable as an appeal from an order is not a decree, so the two categories are mutually exclusive.
- Section 104(2). No appeal lies from an order passed in appeal: there is no second appeal from an order.
- Section 105(1). For orders outside the list, the objection may be taken in the appeal from the decree, provided it affected the decision.
- Section 105(2). An appealable order of remand not appealed cannot afterwards be disputed.
- Order XLIII Rule 2. The rules of Order XLI apply, so far as may be, to appeals from orders.
6. Frequently Asked Questions
How do the two rules differ?
From a decree, Section 96 gives an appeal from every decree with stated exceptions. From an order, Section 104 with Order XLIII Rule 1 names the appealable orders and provides that an appeal lies from no others. One is a rule of inclusion, the other a rule of list.
Can a decision be both a decree and an order?
No. Clause (a) of Section 2(2) excludes from the definition of decree any adjudication from which an appeal lies as an appeal from an order, so the two categories are mutually exclusive and placing a decision in one settles the route of challenge.
Is there a second appeal from an order?
No. Section 104(2) provides that no appeal shall lie from any order passed in appeal under the section, so an appealable order is decided once in appeal and no further.
What can be done about an order that is not in the list?
Under Section 105(1), any error, defect or irregularity in it, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal from the decree. In a proper case, revision under Section 115 or a petition under Article 227 may also lie.
Why must an order of remand be appealed immediately?
Because Section 105(2) provides that a party aggrieved by an appealable order of remand who does not appeal is thereafter precluded from disputing its correctness. A remand sends the case back for a fresh trial, and allowing the challenge later could waste years of retrial.
What procedure governs an appeal from an order?
Order XLIII Rule 2 applies the rules of Order XLI, so far as may be. The memorandum, the grounds, summary dismissal, stay of execution and the form of the judgment therefore follow the first-appeal pattern.
7. Related Topics in This CPC Series
- Appeals from Orders: Sections 104 to 106 and Order XLIII
- First Appeals: Sections 96 to 99A and Order XLI
- Decree, Judgment and Order Distinguished
- Decree and Deemed Decree Distinguished