Every order, which is not a decree, is not appealable. Only those orders which are specified in S. 104 and Order XLIII, Rule 1, are appealable. They are as under:
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:
ADVERTISEMENTS:
(a)
(b)
(c)
(d)
ADVERTISEMENTS:
(e)
(f) Annulled
(ff) an order under S. 35-A;
(ffa) an order under S. 91 or S. 92 refusing leave to institute a suit of the nature referred to in S. 91 or S. 92, as the case may be;
ADVERTISEMENTS:
(g) An order under S. 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 less amount, ought to have been made.
(2) No appeal shall lie from any order passed in appeal under this section.
Section 104 provides that an appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any I law for the time being in force, from no other orders:
(a) An order under S. 35-A, i.e., in a case where compensatory costs in respect of false or vexatious claims or defence have been awarded;
(b) An order under S. 95, i.e., in a case where compensation for obtaining arrest, attachment or injunction on insufficient grounds has been awarded;
(c) An order under any of the provisions of the 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; and
(d) Any order made under rules from which an appeal is expressly allowed by rules.
(e) Under the amended provision an appeal shall also lie from an order under S. 91 or S. 92 refusing leave to institute a suit of the nature referred to in S. 91 or S. 92, as the case may be. No appeal shall lie from any order passed in appeal under this section.
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Appeals from orders:
Under the provisions of Order XLIII, Rule 1, C.P.C., an appeal shall lie from the following orders under the provisions of S. 104, namely:
(a) An order under Rule 10 of Order VII returning a plaint to be presented to the proper court, except where the procedure specified in Rule 10-A of Order VII (viz., where a date of appearance in the court where plaint is to be filed after its return has been fixed) has been followed;
(c) An order under Rule 9 of Order IX rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;
(d) An order under Rule 13 of Order IX rejecting an application (in a case open) for an order to set aside a decree passed ex parte; order for discovery;
(f) An order under Rule 21 of Order XI, i.e., in a case of non-compliance with an order for discovery;
(i) An order under Rule 34 of Order XXI on an objection to the draft of a document or of an endorsement;
(j) An order under Rule 72 or Rule 92 of Order XXI setting aside or refusing to set aside a sale;
(ja) an order rejecting an application made under sub-rule (1) or Rule 106 of Order XXI, provided that an order on the original application, that is to say, the application referred to in sub-rule (1) of Rule 105 of that Order is appealable;
(k) An order under Rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit;
(l) An order under Rule 10 of Order XXII giving or refusing to give leave;
(n) An order under Rule 2 of Order XXV rejecting an application (in a case open to appeal) for an order to get aside the dismissal of a suit;
(n-a) An order under Rule 5 or Rule 7 of Order XXXIII rejecting an application for permission to sue as an indigent person;
(p) Orders in interpleader suits under Rule 3, Rule 4 or Rule 6 of Order XXX;
(q) An order tinder Rule 2, Rule 3 or Rule 6 of Order XXXVIII;
(r) An order under Rule 1, Rule 2, Rule 2-A, Rule 4 or Rule 10 of Order XXXIX;
(s) An order under Rule 1 or Rule 4 of Order XL;
(t) An order of refusal under Rule 19 of Order XL to readmit, or under
Rule 21 of Order XLI to re-hear, an appeal; (u) an order under Rule 23 or Rule 23-A of Order XLI remanding a case where an appeal would lie from the decree of the appellate court;
(w) An order under Rule 4 of Order XLVII granting an application for review. (Order XLIII, Rule 1).
Order XLIII Rule 1 (k), C.P.C provides that an appeal shall lie from an order under Rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit. Where the Court refuses the application for substitution, in effect it declares the suit as abated, because the effect of the order is nothing else than what will follow if no application for substitution, was made by the heir within the time limited by law. Rule 3 (2) of Order XXII will thus be attracted and the suit shall be deemed to stand abated. As the effect of the order passed by the learned Munsif, in substance, was to declare the suit abated, the appeal was maintainable.
Since all the findings have not been reversed, one can conclude that the other findings have been affirmed by the appellate court and the same have become final. Even after the order of remand, those concluded matters cannot be reopened by the trial court. Since there was remand with a direction to retry the suit on two matters the order in question is appealable within the meaning of clause (u) of Rule 1 of Order XLIII of the Code. In view of S. 115 (2) of the Code an application for revision does not lie.
In an appeal against an order of remand its scope must be limited to only those matters which are directly related to or touch upon the validity of the remand order. An appeal under cl. (u) of Rule 1 of Order XLIII in scope is confined to the consideration of those matters only which prompted the lower appellate court to remand the suit and which formed the very foundation of such an order.
It is true that the scope of an appeal against an order of remand cannot also be narrowed down so much as to confirm it only to the order itself and exclude all those factors and circumstances which may have prompted the court below to remand the case.
For example, if it becomes necessary to allow amendment due to some enactment or other intervening events requiring additional pleadings from the other side which gives rise to additional issues. In such a situation the appellate court may find it necessary to remand the case to enable the parties to complete their pleadings and raise additional issues for decision.
The party aggrieved by such an order of remand may in an appeal under cl. (u) of Order XLIII, Rule 1 be allowed to assail the legality of the order allowing the amendment also if it was found to be so intricately intertwined with the order of remand that it renders it impossible to consider the remand order in isolation.
Where such orders can be considered separately the order of remand alone should be considered by the court. In that event the scope of appeal under cl. (u) will be confined to consideration of such material only on the basis of which the order of remand was passed.
A discretionary order passed by the trial court on proper self-direction to the factors relevant to exercise of power under Order XXXIX, Rule 1, C.P.C., cannot be interfered with the appeal under Order XLIII, Rule 1, C.P.C., except on a categorical finding that the order appealed against was either passed without proper self-direction to the relevant factor or it was otherwise illegal and perverse.
In Svenska Handolsbanken v. Indian Charge Chrome and others, it has been held by the Supreme Court that whenever an appeal is heard, it is the duty of the appellate court to examine the finding of the trial court and if the findings of the trial court are not correct, to deal with it.
Order XLIII, Rule 1, C.P.C. provides an appeal from the orders passed under Order XXXIX, Rule 1, etc., as stated in sub-rule (r). Section 104, C.P.C., provides for an appeal from the orders provided in Order XLIII save as otherwise expressly provided in the body of this Code or by any law for the time being in force and from no other orders.
Sub-section (2) envisages that “no appeal shall lie from any order passed in appeal under this section”. It would, therefore, be clear that when an appeal was filed against the order of the City Civil Court, Bombay, to the learned single Judge under Order XLIII, Rule 1 (r) as provided in sub-section (1) of section 104 by operation of sub-section (2) of section 104, no further appeal shall lie from any order passed in appeal under this section.
Right to challenge non-appealable orders in appeal against decrees:
Where any order is made under the Code against a party and thereupon any judgment is pronounced against such party and a decree is drawn up, such party may, in an appeal against the decree, contend that such order should not have been made and the judgment should not have been pronounced.
In an appeal against a decree passed in a suit after recording a compromise or refusing to record a compromise, it shall be open to the appellant to contest the decree on the ground that the compromise should, or should not, have been recorded. (Order XLIII, Rule 1-A).
When an appeal is barred by limitation and an application is made under S. 5 of the Limitation Act for condonation of the delay along with the memorandum of appeal, until the application under S. 5 is allowed, the appeal cannot be filed or admitted at all. In other words, till a favourable order is made on the application under S. 5 the appeal is non est. In that event the question of rejecting a memorandum of appeal does not arise at all at that stage.
An order rejecting the memorandum of appeal following the rejection of an application under S. 5 of the Limitation Act for condonation of the delay in filing the appeal is not a decree but an order against which an application in revision under S. 115 of the Code may lie but no appeal under Order XLIII, Rule 1 of the Code can be preferred.
Where an appeal has been heard by a single Judge of the High Court against an interim injunction order of the City Civil Court under Order XLIII, Rule 1 (r), C.P.C., no further Letters Patent Appeal to the Division Bench of the High Court would lie against the order of the Single Judge by virtue of S. 104 (2), C.P.C.
Second appeal against appellate order granting or rejecting injunction is not maintainable:
Clause (i) of sub-section (1) of Section 104 provides that an appeal shall lie against an order made under rules from which an appeal is expressly allowed by rules.
An appeal under Order XLIII, Rule 1 shall lie against the first order because the rule says that such an appeal shall be permissible. The law nowhere says that even against appellate order granting or rejecting the injunction, a second appeal is maintainable in the High Court, Sub-rule (2) above clearly bars an appeal against the appellate order.
S. 104 (2) expressly bars Letters Patent Appeal against appellate order of single Judge vacating status quo order passed in injunction suit.
Where order passed by single Judge under Order XLIII, Rule 1 in appeal against the grant of interim injunction, no further appeal lies to Division Bench in view of S. 104 (2).