You are on page 1of 15





PROJECT SUBMITTED BYKanwaljeet Singh Saini

Roll No. 61


I would like to take this opportunity to express my deep sense of gratitude towards my course
teacher Ms. Neha Sinha for giving me constant guidance and encouragement throughout the
course of the project.
I would also like to thank the University for providing me the internet and library facilities
which were indispensable for getting relevant content on the subject, as well as subscriptions
to online databases and journals, which were instrumental in writing relevant text.
Special thanks goes out to my Friends who have been relentless in their help and supporting
providing any material whenever required, who always stood by me, irrespective of the
decisions taken by me. Without their support this project would not have seen the light of the

Acknowledgements..................................................................................................... 2
Introduction........................................................................................................... 4
Objective of Study.............................................................................................. 5
APPEALABLE ORDERS: SECTION 104, ORDER 43...................................................6
Section 105 - Other orders...................................................................................11
Limitation............................................................................................................. 13
Bibliography......................................................................................................... 14


In law, an appeal is the process in which cases are reviewed, where parties request a formal
change to an official decision. Appeals function both as a process for error correction as well
as a process of clarifying and interpreting law.
As per Section 2 (14), the formal expression of any decision of a civil court which is not a
Decree is Order. In a suit, a court may take certain decisions on objective considerations and
those decisions must contain a discussion of the matters at issue in the suit and the reasons
which led the court to pass the order. However, if those decisions fall short of a decree, they
are orders.
Nature and scope
The Code has made certain orders appealable. Appeals can be filed only against those orders 1
which are made appealable. No appeal lies from other orders.2
I would first like to make you understand the relevant sections of the Code Section 104 of the
Code deals with appeals from appealable orders.

Research Methodology
This project is based upon doctrinal method of research. This project has been done after a
thorough research based upon intrinsic and extrinsic aspects of the project.
1S. 104(1). See also Keshardeov. RadhaKissen,AIR

1953 SC
23 at p. 27:1953
SCR 136: Ganga Bai v. Vijay Kumar, (1974) 2 SCC 393: AIR 1974 SC 1126; Shah
Babulal v. Jayaben D. Kania, (1981) 4 SCC 8: AIR 1981 SC 1786.

2S. 104(2).

Sources of Data:
The following secondary sources of data have been used in the project1. Articles.
2. Books
3. Websites
Method of Writing:
The method of writing followed in the course of this research project is primarily analytical
and based on secondary source of data.

Objective of Study
To Know the concept of the Appeals from Orders as per Civil Procedure Code,


An appeal shall lie from the following orders:


An order awarding compensatory costs in respect of false or vexatious claims or

defence. (Section 35-A)

Such appeal, however, is limited to two grounds, namely:


No such order could have been made; or


An order for less amount ought to have been made.


An order refusing leave to institute a suit against public nuisance. (Section 91)


An order refusing leave to institute a suit in case of breach of trust. (Section 92)


An order awarding compensation for obtaining arrest, attachment or injunction on

insufficient grounds. (Section 95)


An order imposing a fine11 or directing the arrest or detention in civil prison of any
person except where such arrest or detention is in execution of a decree.


An order returning a plaint to be presented to the proper court. (Order 7 Rule 10)


An order rejecting an application (in appealable cases) to set aside the dismissal of a
suit for default.


(Order 9 Rule 9)

An order rejecting an application (in appealable cases) to set aside an ex parte decree.
(Order 9 Rule 13)


An order dismissing a suit or striking out defence for non-compliance with an order
for discovery. (Order 11 Rule 21)16


An order objecting to the draft of a document or an endorsement on a negotiable

instrument. (Order 21 Rule 34)


An order setting aside or refusing to set aside a sale. (Order 21 Rule 72, 92)


An order rejecting an application to set aside orders passed ex parte in execution

proceedings. [Order 21 Rule 106(i)]


An order refusing to set aside the abatement or dismissal of a suit. (Order 22 Rule 9)


An order giving or refusing to give leave to continue a suit by or against an assignee.

(Order 22 Rule 10)


An order rejecting an application (in appealable cases) to set aside the dismissal of a
suit for not furnishing security for costs within time. (Order 25 Rule 2)


An order rejecting an application for permission to sue as an indigent person. (Order

33 Rule 5 or 7)


An order in an interpleader suit for costs of the plaintiff where the defendant in
interpleader suit sues the plaintiff in another court (Order 35 Rule 3), or for costs and
discharge of the plaintiff in an interpleader suit. (Order 35 Rule 4 or 6)


An order to deposit money or other property, or to furnish security, or fresh security

for appearance of the defendant (Order 38 Rule 2 or Rule 3) or for attachment of
property before judgment. (Order 38 Rule 6)


An order granting or refusing to grant interim injunction. (Order 39 Rule 1 or 2)


An order for attachment of property or detention of a person disobeying an order of

injunction. (Order 39 Rule 2-A)


An order discharging, varying or setting aside injunction. (Order 39 Rule 4)


An order for deposit of money or other thing in court or for its delivery to the person
entitled. (Order 39 Rule 10)


An order for appointment of receiver. (Order 40 Rule 1)


An order for attachment and sale of property of defaulting receiver. (Order 40 Rule 4)


An order refusing to restore an appeal dismissed for default of appearance by

appellant. (Order 41 Rule 19)


An order refusing to rehear an appeal heard ex parte.(Order 41 Rule 21)


An order of remand (in appealable cases). (Order 41 Rule 23 or 23-A)


An order granting an application for review. (Order 47 Rule 1)

From a bare reading of the aforesaid provision, two things become clear. Firstly, an appeal
will lie only from those orders which have been prescribed in this section and not against any
other orders. Secondly, by reason of the words "save as otherwise expressly provided in the
body of the Code or by any law for the time being in force", those orders shall also be
appealable which are made appealable either in the body of the Code or under any other law
for the time being in force. In other words, a right to appeal conferred by any other law for
the time being in force is expressly preserved.
The Supreme Court, in the case of Union of India vs. Mohindra Supply Company, A.I.R. 1962
S.C. 256, has observed that the intention of the legislature in enacting sub-section Section 104
of the Code is emphasized by Section 4 of the Code which provides that in the absence of any

provision to the contrary, nothing in the Code is intended to limit or otherwise affect any
special legislation or power conferred by or under any law for the time being in force. A right
to appeal against a judgment under the Letters Patent, however, is not affected by Section
104(1) of the Code.
If we see the history of the legislation, we will find that in the Old Code of Civil Procedure,
1871, there were two kinds of appeals which could be filed in the High Court. One was
against the judgments and decree of the trial courts and the other was against the orders
passed by the trial courts during the pendency of suit. Under the old Section 588 of the 1871
Code, all appeals against interlocutory orders were appealable in High Court. Now, under the
Code of 1908, the old Section 588 of the Old Code corresponds to Order 43, Rule 1. Under
the Old Code, there was a separate Section 591, which provided that no further appeal could
lie from any order passed by any court in exercise of appellate jurisdiction. While interpreting
Sections 588 and 591 of the Code of 1871, conflicting decisions have been given by different
Chartered High Courts, i.e., Bombay, Calcutta and Madras, in the matter of Letters Patent
Appeals filed under Clause 15 of the Letters Patent of their respective High Courts. However,
the matter has been set at rest by enacting Section 104 in the present Code of 1908. Section
104 of the present Code makes it clear that appeals against orders mentioned in Order 43,
Rule 1, C.P.C. will not in any way affect the remedy under the Letters Patent of the High
Court. Hence, one should bear in mind that by virtue of Section 104, C.P.C., all appeals
against the orders indicated in Order 43, Rule 1 of the Code will lie to the appellate court
having territorial and pecuniary jurisdiction.
In Subal Paul Vs. Malina Paul reported in A.I.R. 2003 S.C. 1928, the Supreme Court while
considering the scope of Section 104 of the Code observed It is one thing to say that as no
decree is prepared, the procedural provisions for preferring an appeal as required under Order
41 Rule 1 of the Code of Civil Procedure shall not be applicable and, thus, a copy of the

decree is not required to be annexed with the memorandum of appeal but it is another thing to
say that a right of appeal is provided under Section 104 of the Code of Civil Procedure itself.
Section 104 of the Code of Civil Procedure specifies matters which would be appealable and
no other.
Under the Code of Civil Procedure appeals from orders are provided for in Section 104 and
Order 43 Rule 1 thereof. The said provisions contain a full list of appealable orders. It does
not contemplate orders or decree passed under a special statute.
By reason of Section 104 of the Code of Civil Procedure the bar of appeal under a special
statute is saved. A plain reading of Section 104 of the Code of Civil Procedure would show
that an appeal shall lie from an appealable order and no other order save as otherwise
expressly provided in the body of this Code or by any law for the time being in force. Section
104 of the Code merely recognises appeals provided under special statute. It does not create a
right of appeal as such.
Section 104(1) clause speaks about an order passed under Section 35-A, which is made
appealable. Section 35-A deals with compensatory costs in respect of false or vexatious
claims or defences. Section 35-A provides that in any suit or other proceeding any party
objects to the claim or defence on the ground that the claim or defence or any part of it is
false or vexatious to the knowledge of the party by whom it has been put forward and
subsequently such claim or defence is disallowed, abandoned or withdrawn as against the
objector, then the Court may by recording reasons order for the payment to the objector costs
by way of compensation. Such order of awarding costs or compensation has been made
appealable. Similarly, orders passed under Sections 91, 92 and 95 of the Code are also made


In B.S. Adityan vs. B.Ramachandran Adityan, (2004) 9 S.C.C. 720, the Supreme Court
observed that "when a specific provision has been made in the Code of Civil Procedure in
Section 104 allowing an appeal to be filed against an order refusing to grant leave to file a
suit, the appeal filed by the respondents before the Division Bench was certainly competent
to be considered by that Bench Although as a rule of caution, court should normally give
notice to the defendants before granting leave under Section 92 to institute a suit, the court is
not bound to do so. If a suit is instituted on the basis of such leave, granted without notice to
the defendants, the suit would not thereby be rendered bad in law or non-maintainable. Grant
of leave cannot be regarded as defeating or even seriously prejudicing any right of the
proposed defendants because it is always open to them to file an application for revocation of
the leave which can be considered on merits and according to law or even in the course of
suit which may be established that the suit does not fall within the scope of Section 92 CPC.
In that view of the matter, we do not think, there is any reason for us to interfere with the
order made by the High Court".

Section 105 - Other orders

(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 there from, he shall thereafter be
precluded from disputing its correctness."
Section 105 of the Code corresponds to Section 591 of the Code of 1882. Sub Section (2) has
been inserted in Section 105 of the Civil Procedure Code, 1908. It has been inserted to

compel the litigants to appeal against an order of remand and on their failure to do so, they
are precluded by the express provision of this sub-section from disputing the correctness of
such remand order when subsequently by appealing from the decree. This section provides
that no appeal shall lie from any order made by a Court in a suit or appeal unless right of
appeal from any such order is expressly given by the provisions of the Code. Section 104 and
Order 43 Rule 1 expressly mention the orders which are appealable and unless an order falls
within any of the provisions of the Sections mentioned above, no appeal lies. The orders
which do not fall within the provisions of the above two sections are non-appealable orders.
This section applies equally to both the appealable and non-appealable orders.
If an order is appealable, the party against whom the order is made may prefer an immediate
appeal from the order.
But, if he does not prefer an immediate appeal against the order, then he can make the error,
defect or irregularity of the order, a ground of objection in a memorandum of appeal, where
an appeal is preferred against the decree in the suit in which the order was made.
Similarly, in the case of non-appealable orders the party against whom the order was made
may make the error, defect or irregularity of the order a ground of objection in the
memorandum of appeal against the final decree. Thus, by this section, both appealable and
non-appealable orders are placed on the same footing. The only advantage of appealable
order is that an immediate appeal can be preferred against it. This section in substance
provides for an indirect appeal from a non-appealable order and herein lies the distinction
between Section 104 and 105. But, in the case of appeals from decree the rule is quite
different as will appear from Section 97 which provides that a person aggrieved by a
preliminary decree is bound to prefer an appeal against it; otherwise he will be precluded
from disputing its correctness in an appeal which may be preferred against the final decree.


The policy of the Legislature in enacting S.105, C.P.C. was to give finality to orders of
remand Bisai Nath vs. Tara Nath, 721.C. 588 : A.I.R. 1923 Cal. 385. As to other orders, the
section enables the Court, when dealing with an appeal from a decree, to deal with any
question which may arise as to any error, defect or irregularity in any order affecting the
decision of the case, though an appeal from such order might have been and has not been
In the case of Nawab Shaqafath Ali Khan vs. Nawab Imdad Jah Bahadur reported in (2009) 5
S.C.C. 162, the Supreme Court held It may be true that in terms of Section 105 of the Code
of Civil Procedure when an appeal against the final decree is passed, legality of the said order
could be challenged in the appeal. Only because a civil revision application has not been
filed, the same, in our opinion, would not attract the principle of res judicata as an appeal
from the final decree could still be maintained."
Section 105 enacts that every order whether appealable or not, except an order of remand, can
be attacked in an appeal from the final decree on the ground (z) that there is an error, defect
or irregularity in the order; and (zz) that such error, defect or irregularity affects the decision
of the case.36 The principle underlying Section 105 is that when an interlocutory order is
appealable, the party against whom such order is made is not bound to prefer an appeal
against it. There is no such law which compels a party to appeal from every interlocutory
order by which he may feel aggrieved. Section 105 makes it clear that an order appealable
under Section 104 may be questioned under this section in an appeal from the decree in the
suit, even though no appeal has been preferred against the interlocutory order.
Prior to the Amendment Act of 1976, an order under Order 23 Rule 3 recording or refusing to
record an agreement, compromise or satisfaction was appealable. By the Amendment Act of
1976, the said provision has been deleted. However Rule 1 -A has been added which provides


that 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 contort the decree on the ground that
the compromise should, or should not, have been recorded.

An appeal from an order can be filed in a high court within 90 days and in other within 30
days from the date of the orders.



Code of civil procedure, 1908.

C.K. Takwani, Civil Procedure with Limitation Act, 1963, Eastern Book Company,
seventh edition, Page no. 441-446.