Code of Civil Procedure, 1908 (CPC)
Appeals from Orders: Sections 104 to 106 and Order XLIII CPC
A suit produces one decree and dozens of orders, and if every order were appealable no suit would ever be tried. The Code therefore makes a closed list: Section 104 and Order XLIII Rule 1 together name the orders from which an appeal lies, and Section 105 provides that no appeal lies from any other, while preserving the objection for the appeal against the decree. These notes cover the appealable orders, the position of the rest, the Section 105 route, the special rule for remand orders, and the comparison with an appeal from a decree.
Sorting an order: in the list, or not, and what the Code leaves open either way
1. Section 104: Orders from Which an Appeal Lies
§ Section 104, CPC 1908 (in substance) (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 — (ff) an order under section 35A awarding compensatory costs for a false or vexatious claim; (ffa) an order under section 91 or section 92 refusing leave to institute a suit of the nature referred to in those sections; (g) an order under section 95 awarding compensation for obtaining an arrest, attachment or injunction on insufficient grounds; (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. (2) No appeal shall lie from any order passed in appeal under this section. |
Clause (i) is the hinge: it carries the whole of Order XLIII Rule 1 into the section, so the two must always be read together. And sub-section (2) is the corresponding limit: there is no second appeal from an order. An order appealed under Section 104 is decided once, and that is the end of it.
2. Order XLIII Rule 1: The List
Provision appealed from | Nature of the order |
|---|---|
Order VII Rule 10 | An order returning a plaint to be presented to the proper court, except where the procedure in Rule 10A is followed |
Order IX Rule 9 | An order rejecting an application to set aside the dismissal of a suit for the plaintiff's default |
Order IX Rule 13 | An order rejecting an application to set aside an ex parte decree |
Order XI Rule 21 | An order under that rule, dismissing a suit or striking out a defence for failure to comply with a discovery order |
Order XXI Rule 34 | An order on an objection to the draft of a document or an endorsement |
Order XXI Rules 72 and 92 | An order setting aside or refusing to set aside a sale in execution |
Order XXII Rules 9 and 10 | An order refusing to set aside an abatement or dismissal, and an order giving or refusing to give leave to continue on a devolution of interest |
Order XXV Rule 2 | An order rejecting an application for an order to set aside the dismissal of a suit for failure to furnish security for costs |
Order XXXIII Rules 5, 7 and 15A | Orders rejecting an application to sue as an indigent person, and related orders |
Order XXXVIII, Rules 2, 3 and 6 | Orders for arrest or attachment before judgment |
Order XXXIX Rules 1, 2, 2A, 4 and 10 | Orders granting, refusing, discharging, varying or setting aside a temporary injunction, and orders under Rule 2A for disobedience |
Order XL Rules 1 and 4 | Orders appointing a receiver, and orders under Rule 4 against a receiver in default |
Order XLI Rules 19, 21, 23 and 23A | Orders rejecting an application to readmit or rehear an appeal, and orders of remand |
Order XLVII Rule 4 | An order granting an application for review |
§ Two points about the list It is exhaustive. Section 104(1) says and from no other orders, and Order XLIII Rule 1 is the list of orders under the rules from which an appeal is expressly allowed. An order not in the list is not appealable, however grave its consequences. Its logic is identifiable. The orders in the list share a feature: each either terminates the proceeding or a party's participation in it (returning a plaint, refusing to set aside a dismissal or an ex parte decree, refusing to sue as an indigent person), or takes away liberty or property before the case is decided (arrest, attachment, injunction, receiver), or sends the case back for a fresh trial (remand). Interlocutory orders that merely regulate the conduct of the trial are left out. |
3. Orders Not in 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. |
§ How sub-section (1) works in practice Four points: • The order is not appealable, but the objection is not lost. 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. • The objection must affect the decision of the case. An irregularity that made no difference to the outcome is not a ground, which aligns with Section 99, under which a decree is not reversed for an error not affecting the merits or the jurisdiction of the court. • It must be set out in the memorandum. The ordinary discipline of Order XLI Rule 1(2) and Rule 2 applies: the ground must be stated, and it cannot be urged except by leave if it is not. • Revision remains available in a proper case. Where the order suffers from a jurisdictional error of the kind Section 115 addresses, revision may lie, and in an appropriate case Article 227 of the Constitution. Neither is a substitute for the appeal, and both are exercised sparingly. |
§ Section 105(2): the remand exception The sub-section is the single and important exception to the wait-and-raise-it-later scheme. An order of remand under Order XLI Rule 23 or 23A is appealable, being in the list. If the aggrieved party does not appeal it, he is precluded thereafter from disputing its correctness. The reason is practical. A remand sends the case back for a fresh trial, and the parties then spend years retrying it. If the correctness of the remand could be questioned afterwards, in the appeal from the final decree, the whole retrial might be wasted. The Code therefore requires the challenge to be made when the remand is ordered, or not at all. |
4. Appeal from an Order Compared with Appeal from a Decree
Basis | Appeal from an order | Appeal from a decree |
|---|---|---|
Source of the right | Section 104 with Order XLIII Rule 1: a closed list | Section 96: from every decree of a court exercising original jurisdiction |
What is appealable | Only the orders named; from no other orders | Every decree, subject to Section 96(3) and (4) |
Limitation | Ninety days to a High Court and thirty days to any other court, under Articles 116 and 117 of the Limitation Act, 1963 | The same articles apply, ninety days and thirty days respectively |
Further appeal | None. Section 104(2): no appeal lies from any order passed in appeal under the section | A second appeal lies under Section 100 on a substantial question of law |
Procedure | Order XLIII Rule 2: the rules of Order XLI apply, so far as may be, to appeals from orders | Order XLI in full |
Effect of not appealing | Except for a remand order under Section 105(2), the objection survives and may be taken in the appeal from the decree | The decree becomes final between the parties |
Order XLIII Rule 2 completes the procedural position: the rules of Order XLI apply, so far as may be, to appeals from orders. So the memorandum, the grounds, summary dismissal, stay, and the contents of the judgment follow the same pattern as in a first appeal, with the differences that the list is closed and that no further appeal lies.
5. Landmark Points
- 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 104(2). No appeal lies from an order passed in appeal under the section: there is no second appeal from an order.
- Order XLIII Rule 1. The exhaustive list, covering orders that end the proceeding, take liberty or property before decision, or remand the case.
- Section 105(1). No appeal from other orders, but any error, defect or irregularity affecting the decision of the case may be set forth as a ground of objection in the appeal from the decree.
- Section 105(2). A party who does not appeal an appealable order of remand is precluded from disputing its correctness thereafter.
- Order XLIII Rule 2. The rules of Order XLI apply, so far as may be, to appeals from orders.
6. Frequently Asked Questions
Which orders are appealable under the CPC?
Only those named in Section 104 and Order XLIII Rule 1. They include orders returning a plaint, refusing to set aside a dismissal or an ex parte decree, refusing leave to sue as an indigent person, orders of arrest or attachment before judgment, orders on temporary injunctions and receivers, orders of remand, and an order granting a review.
Is the list of appealable orders exhaustive?
Yes. Section 104(1) provides that an appeal shall lie from the orders named and from no other orders, and Section 105(1) repeats that no appeal lies from any other order made in the exercise of original or appellate jurisdiction.
What can a party do about an order that is not appealable?
He may set it forth as a ground of objection in the memorandum of appeal against the decree, under Section 105(1), provided the error, defect or irregularity affected the decision of the case. In a proper case a revision under Section 115 or a petition under Article 227 may also lie.
What is special about an order of remand?
It must be challenged when it is made. Section 105(2) provides that a party aggrieved by an appealable order of remand who does not appeal from it is thereafter precluded from disputing its correctness, so the objection cannot be revived in the appeal against the final decree.
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 the section, so an appealable order is decided once in appeal and no further.
What procedure governs an appeal from an order?
Order XLIII Rule 2 applies the rules of Order XLI, so far as may be, to appeals from orders. The memorandum and its 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
- First Appeals: Sections 96 to 99A and Order XLI
- Second Appeals: Sections 100 to 103 and Order XLII
- Reference, Review and Revision under the CPC
- Order XXXIX: Temporary Injunctions and Interlocutory Orders