O 43, R, 7] Order 43 1837

from appellate decrees with the Punjab

modifications contained in this Order.
2. (1) The memorandum of appeal shall
be printed or typewritten and shall be
accompanied by the following papers;
(2) One certified copy of the decrees
of the Court of first instance and of
the Appellate Court and four printed
copies of each of the judgments of
the said Courts, one copy of each
judgment being a certified copy;
(3) If any ground of appeal is based
upon the construction of a document,
a printed or typewritten copy of such
document shall be presented with the
memorandum of appeal:
Provided that if such document is not
in the English language and the
appellant appears by a pleader, an
English translation of the document
certified by the pleader to be a correct
translation shall be presented.
3.If the appellant fails to comply with this
Rule, the appeal may be dismissed.” (w.e.f.
18.10.1917).
In Order XLII, after Rule 1, insert the
following, namely:
“2. In addition to the copies specified
in Order XLI, Rule 1, the memorandum
of appeal shall be accompanied by a
copy of the judgment of the Court of
first instance, unless the Appellate
Court dispenses therewith”, (w.e.f.
09.06.1959)
Kerala
After Order XLII, insert the following Order,
namely:
“ORDER XLIIA
Appeals from decrees and orders of
single judge to division bench of
the High Court
Procedure: The Rules of Orders XLI and
XLIA shall apply, so far as may be, to
appeals from decrees and orders of a
Single Judge to a Division Bench.” (w.e.f.
09.06.1959)

Order XLIII
Appeal From Orders

1. Appeal from Orders.—

An appeal shall lie from the following orders under the provisions of Section 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 10A of
Order VII 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 9 of Order IX rejecting an application (in a case open
to appeal) for an order to set aside a decree passed ex parte ;
[* * *]
(f) an order under Rule 21 of Order XI ;
[* * *]

®
1837
1838 Code of Civil Procedure, 1908 [O 43, R. 1

(i) an order under Rule 34 of Order XXI or 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 ;
(j-a) an order rejecting an application made under Sub-rule (1) of 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 set aside the dismissal of a suit ;
(na) 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 XXXV ;
(q) an order under Rule 2, Rule 3 or Rule 6 of Order XXXVIII ;
(r) an order under Rule 1, Rule 2 Rule 2A, 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 XLI to re-admit, or under Rule 21
of Order XLI to re-hear, an appeal ;
(u) an order under Rule 23 or Rule 23A 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.

ANNOTATIONS

Amendments Effective Date of Amendment

The Code of Civil Procedure Amendment The Code of Civil Procedure (Amendment)
Act, 1976 inserted the text “except where Act, 1976 wef. 01.02.1977
the procedure specified in Rule 10-A of Order
VII has been followed” in clause (a) of Rule 1. High Court Amendments
The Amendment Act further omitted clauses Allahabad
(b), (e), (g), (h), (m), (o) and (v) of Rule 1. The In Order XLIII, in Rule 1, omit clauses
Amendment inserted clause (ja) and (na) to (g), (i) and (o).
Rule 1. It also inserted the text “rule 2-A) in
clause (r). [Vide Notification No. 43/VII-d-29, dated
01.06.1957.]

®
1838
O 43, R, 1] Order 43 1839

Andhra Pradesh [Vide Notification No. 3516-G, dated 03.02.

In Order XLIII, in Rule 1:
(i) after clause (i) insert the following
clause, namely:
“(ii) an order under Rule 106 of Order
XXI;”
[Vide Notification No. P Dis. 229/56, dated
02.04.1956.]
(ii) in clause (r), after the words and
figure “rule 2”, insert the words and
figures “rule 3A, Rule 3B”. (w.e.f.
12.07.1962)
Bombay
In Order XLIII, in Rule 1:
(i) in clause (r), for the words and
figures “or Rule 10”, substitute the
words and figures “rule 10 and
Rule 11”; (w.e.f. 01.11.1966)
(ii) omit clause (w).
[Vide Notification No. 1646, dated, 09.03.
1926.]
Calcutta
In Order XLIII, in Rule 1, after clause (i),
insert the following clause, namely:
“(i) (a) An order under Rule 57 of Order
XXI, directing that an attachment shall
cease or directing or omitting to direct
that an attachment shall continue.”
1933.]
Gauhati
Same as in Calcutta.
Gujarat
Same as in Bombay (ii).
Kerala
In Order XLIII, in Rule 1, same as in
Madras (b). (09.06.1959)
Madras
In Order XLIII, in Rule 1:
(a) after clause (i) insert the following
clause, namely:
“(ii) an order under Rule 106 of
Order XXI.” (w.e.f. 19.05.1954)
(b) in clause (s), at the end, insert
the words “except an order under the
proviso to Sub-rule (2) of Rule 4.”
[Vide P Dis. No. 60 of 1933.]
Patna
In Order XLIII, in Rule 1, after clause (i),
insert the following clause, namely:
“(ii) an order in garnishee proceedings
other than an order referred to in Rule 63
H (1) of Order XXI.” (w.e.f. 07.01.1936)

Case Cited
1. Keshardeo Chamria v. Radha Kissen Chamria and Radha Kissen Chamria v. Keshardeo
Chamria MANU/SC/0006/1952: AIR 1953 SC 23; Smt. Ganga Bai v. Vijay Kumar MANU/
SC/0020/1974: AIR 1974 SC 1126.
2. P.S. Sathappan v. Andhra Bank Ltd. MANU/SC/0873/2004: AIR 2004 SC 5152.
3. Gurmauj Saran Baluja v. Joyce C. Salim MANU/DE/0119/1988: 1989 (16) DRJ 181.
4. Madhusudan Vegetable Products Co. Ltd., Ahmedahad v. Rupa Chemicals Vapi MANU/
GJ/0044/1986: AIR 1986 Guj 156, P.S. Sathappan v. Andhra Bank Ltd. MANU/SC/0873/
2004: AIR 2004 SC 5152.
5. Ganga Bai v. Vijai, MANU/SC/0020/1974: AIR 1974 SC 1126 : 1974 (2) SCC 393.
6. Shah Babu Lal v. Jayaben, MANU/SC/0036/1981: AIR 1981 SC 1786 : 1981 (4) SCC 8.
7. Maneck Custodji Surjarji v. Sarafazali Nawabali Mirza, MANU/SC/0484/1976: AIR 1976
SC 2446 : (1977) 1 SCC 227.
8. Nathu v. Singhai, MANU/MP/0036/1976: AIR 1976 MP 136 : 1976 MPLJ 306.
9. Doma Choudhary v. Ram Naresh Lal, MANU/BH/0030/1959: AIR 1959 Pat 121 : 1958
Pat LR 413.
10. Bimla v. Aghore, MANU/WB/0016/1975: AIR 1975 Cal 80 : 78 Cal WN 1045 (FB).

®
1839
1840 Code of Civil Procedure, 1908 [O 43, R. 1

11. Madan Lal v. Tripura Bank, AIR 1954 Assam 1 : ILR (1953) 5 Assam 538.
12. A. Venkatasubbiah Naidu v. S. Chellappan, MANU/SC/0581/2000: AIR 2000 SC 3032 :
2000 (7) SCC 695.
13. Akmal v. State, AIR 1984 Gau 96 (FB) ; Astral Traders v. Mohd. Shaban, AIR 1982 J&K
124 : 1982 Srinagar LJ 404 : 1982 Kash LJ 324 (FB).
14. M/s. Ishar Das v. Prakash Chand, MANU/SC/0440/1969: AIR 1969 SC 938 : (1969) 1
SCC 664.
15. Harendra v. Parshottama, MANU/UP/0010/1995: AIR 1995 All 30.
16. Ajmer Kaur v. Punjab State MANU/PH/0003/1991: AIR 1991 P&H 12.
17. Waqf Masjid Pindain v. Athar Husain Haidr MANU/UP/0140/1985: AIR 1985 All 100.
18. Bhagmal v. Prabhu Ram MANU/SC/0154/1984: AIR 1985 SC 150, S. Sundaram Pillai
v. V. R. Pattabiramah MANU/SC/0387/1985: AIR 1985 SC 582, State of U.P. v. III Additional
District Judge, Azamgarh MANU/UP/0221/1989: AIR 1989 All 14.
19. Narasayya v. Thimmappa AIR 1943 Mad 584, Madan Lal Agrawalla v. Tripura Modern
Bank Ltd. AIR 1954 Assam 1 (FB), Doma Choudhary v. Ram Naresh Lal AIR 1959 Pat
121 (FB), Komalchand Beniprasad v. Pooranchand Moolchand MANU/MP/0038/1970:
AIR 1970 MP 199.
20. Bhagmal v. Prabhu Ram MANU/SC/0154/1984: AIR 1985 SC 150, S. Sundaram Pillai
v. V. R. Pattabiramah MANU/SC/0387/1985: AIR 1985 SC 582, State of U.P. v. III Additional
District Judge, Azamgarh MANU/UP/0221/1989: AIR 1989 All 14.
21. Komalchand Beniprasad v. Pooranchand Moolchand MANU/MP/0038/1970: AIR 1970 MP 199.
22. Brijmohan v. Raghoba AIR 1932 Nag 101, Doma Choudhary v. Ram Naresh Lal AIR
1959 Pat 121, Komalchand Beniprasad v. Pooranchand Moolchand MANU/MP/0038/
1970: AIR 1970 MP 199.
23. Narasayya v. Thimmappa AIR 1943 Mad 584, Madan Lal Agrawalla v. Tripura Modern
Bank Ltd. AIR 1954 Assam 1 (FB), Doma Choudhary v. Ram Naresh Lal AIR 1959 Pat
121 (FB), Komalchand Beniprasad v. Pooranchand Moolchand MANU/MP/0038/1970:
AIR 1970 MP 199.
24. Bhagmal v. Prabhu Ram MANU/SC/0154/1984: AIR 1985 SC 150, S. Sundaram Pillai
v. V. R. Pattabiramah MANU/SC/0387/1985: AIR 1985 SC 582, State of U.P. v. III Additional
District Judge, Azamgarh AIR 1989 All 14.
25. Bhanu Kumar Jain v. Archana Kumar MANU/SC/1079/2004: AIR 2005 SC 626.
26. Arjun Singh v. Mohindra Kumar MANU/SC/0013/1963: AIR 1964 SC 993.
27. Kedar Nath v. Purushottam Das Banarsi Das MANU/UP/0066/1966: AIR 1966 All 188.
28. Asnew Drums Private Ltd. v. Maharashtra State Finance Corporation MANU/SC/0006/
1971: AIR 1972 SC 801.
29. Smt. Bimla Devi v. Aghore Chandra Mallick MANU/WB/0016/1975: AIR 1975 Cal 80.
30. Kalaparishad v. The State Bank of India MANU/AP/0034/1992: AIR 1992 AP 225.
31. Mir Wajid Ali v. Fagoo Mandal MANU/BH/0158/1937: AIR 1938 Pat 125, Alphonso
Nazareth v. Xavier Dias MANU/KA/0060/1971: AIR 1971 Kant 79, Ram Kali Devi v.
Ramesh Chander MANU/DE/0237/1981: AIR 1982 Delhi 14.
32. Alphonso Nazareth v. Xavier Dias MANU/KA/0060/1971: AIR 1971 Kant 79, Ram Kali
Devi v. Ramesh Chander MANU/DE/0237/1981: AIR 1982 Delhi 14.
33. Balakrishna Variar v. Sheriffa MANU/KE/0043/1994: AIR 1994 Ker 296.
34. Kulwant Kaur v. Balbir Singh MANU/PH/0152/1983: AIR 1983 P&H 335.
35. Choorakadan alias Rayyappadan Sanku v. Antony MANU/KE/0010/1991: AIR 1991 Ker 44.
36. Delhi Lotteries v. Rajesh Aggarwal MANU/DE/0081/1997: AIR 1998 Delhi 332; Malati
Santra v. Nanda Dulal Banik MANU/WB/0039/1994: AIR 1994 Cal 229; Gajraj Singh v.
Ramkumar MANU/MP/0072/1992: AIR 1992 MP 316; M/s. New Kenilworth Hotel (P)
Ltd. v. Orissa State Finance Corporation MANU/SC/0220/1997: AIR 1997 SC 978.
37. Inda Bewa v. Bharmananda Choudhury MANU/OR/0040/1988: AIR 1988 Ori 154.

®
1840
O 43, R, 1] Order 43 1841

38. Zila Parishad, Budaun v. Brahma Rishi Sharma MANU/UP/0057/1970: AIR 1970 All 376.
39. Shyam Kishore Goswami v. District Magistrate, Hamirpur MANU/UP/0001/1993: AIR
1993 All 1; Iqbal Singh v. Chanan Singh MANU/PH/0230/1965: AIR 1966 Punj 165,
Akmal AH v. State of Assam MANU/GH/0019/1984: AIR 1984 Gau 86 (FB), Raja
Ramakaran v. B. Ramulu MANU/AP/0135/1982: AIR 1982 A P 256, Patel Jasmat
Sangaji Padalia v. Gujarat Electricity Board, Baroda, MANU/GJ/0059/1982: AIR 1982
Guj 264, E. Mangamma v. A. Muniswamy Naidu AIR MANU/AP/0104/1983: 1983 A P
128, In Re : Sankar Kumar Ghosh MANU/WB/0051/1983: AIR 1983 Cal 250, Sayam
Ranjan Bhowmik v. Tripura Public Service Commission AIR 1983 Gau 46, Harbans
Singh v. Rajinder Rajan MANU/PH/0045/1989: AIR 1989 P&H 161.
40. Zila Parishad, Budaun v. Brahma Rishi Sharma MANU/UP/0057/1970: AIR 1970 All 376.
41. R.S. Cambray and Co. (P.) Ltd. v. Bishnu Banerjee MANU/WB/0072/1988: AIR 1988 Cal 400.
42. Bidulata Das v. Braja Bihari Palit MANU/OR/0023/1993: AIR 1993 Ori 78.
43. Ashok Tahering Lema v. Tahering Wangdi AIR 1982 Sikkim 20.
44. Hadmor Productions Ltd. v. Hamilton (1982) 1 All ER 1042, Laxmi Khadi Bhandar v.
Agricultural Development Branch MANU/BH/0036/1991: AIR 1991 Pat 273.
45. Garden Cottage Foods Ltd. v. Milk Marketing Board (1983) 2 All ER 770, Laxmi Khadi
Bhandar v. Agricultural Development Branch MANU/BH/0036/1991: AIR 1991 Pat 273.
46. Nagina Singh v. Most. Sheojoti Kuer MANU/BH/0002/1993l: AIR 1993 Pat 12.
47. Sunni Central Waqf Board v. Sirajul Haq AIR 963 All 537, Ram Babu Verma v. Om
Prakash Verma MANU/UP/0246/1986: AIR 1986 All 355.
48. Sm. Santoshini Bose-Trustee v. Shib Sankar Das MANU/WB/0026/1983: AIR 1983 Cal 123
49. Narayanan v. Kumaran MANU/SC/0229/2004: (2004) 4 SCC 26.
50. Mamuda Khateen v. Beniyan Bibi MANU/WB/0078/1976: AIR 1976 Cal 415, Bhag Mal
v. Munshi MANU/SC/7240/2007: 2007 (4) SCALE 603.
51. Shah Babulal Khimji v. Jayaben D. Kania MANU/SC/0036/1981: AIR 1981 SC 1786,
Chhunilal Laxman Prasad v. Agrawal & Co AIR 1987 M P 172 (DB), B.S. Adityan v.
Fencing Association of India, Jabalpur MANU/MP/0056/1991: AIR 1991 MP 316,
Gurmauj Saran Baluja v. Joyce C. Salim MANU/DE/0119/1988: 1989 (16) DRJ 181,
P.S. Sathappan v. Andhra Bank Ltd. MANU/SC/0873/2004: AIR 2004 SC 5152, Liverpool
and London S.P. and I Asson. Ltd. v. M. v. Sea Success I MANU/SC/0951/2003: (2004) 9
SCC 512, Mithailal Dalsangar Singh v. Annabai Devram Kini MANU/SC/0722/2003:
AIR 2003 SC 4244, Subal Paul v. Malina Paul MANU/SC/0149/2003: AIR 2003 SC
1928, M/s. New Kenilworth Hotel (P) Ltd. v. Orissa State Finance Corporation MANU/
SC/0220/1997: AIR 1997 SC 978.
52. Madan Naik v. Mst. Hansubala Devi MANU/SC/0290/1983: AIR 1983 SC 676, B.S. Adityan
v. Fencing Association of India, Jabalpur MANU/MP/0056/1991: AIR 1991 MP 316.
53. P.S. Sathappan v. Andhra Bank Ltd. MANU/SC/0873/2004: AIR 2004 SC 5152.
54. Midnapore Peoples’ Co-op. Bank Ltd. v. Chunilal Nanda MANU/SC/2810/2006: AIR
2006 SC 2190.

SYNOPSIS

1. Scope .......................................... 1842 7. Sub-rule (k) ................................ 1845

2. Sub-rule (a) ................................ 1843
3. Sub-rule (c) ................................ 1843
4. Sub-rule (d) ................................ 1844
5. Sub-rule (j) .................................. 1844
6. Sub-rule (ja) ................................ 1845
8. Sub-rule (na) .............................. 1846
9. Sub-rule (r) ................................. 1846
10. Sub-rule (s) ................................ 1847
11. Sub-rule (u) ................................ 1848
12. Letters Patent ............................ 1848

®
1841
1842 Code of Civil Procedure, 1908 [O 43, R. 1

1. Scope
Under the Code of Civil Procedure certain specific orders mentioned in Section 104
and Order XLIII, Rule 1, only are appealable and no appeal lies from any other orders.
(Vide Section 105, Civil Procedure Code) (Keshardeo Chamria v. Radha Kissen
Chamria and Radha Kissen Chamria v. Keshardeo Chamria; Smt. Ganga Bai v. Vijay
Kumar).1 The said provisions must be invoked in their entirety and not in isolation. An
appeal is the right of entering a superior Court and invoking its aid and interposition
to redress an error of the Court below. An appeal when expressly provided can be filed
as a matter of right and in no other situation. No right of appeal can be inferred by
implication or otherwise (P.S. Sathappan v. Andhra Bank Ltd.).2 It has now been
authoritatively held by the Supreme Court that as far as Section 10 of the Delhi High
Court Act 1966 is concerned. Order 43 of the Code is not exhaustive. Though appeals
from orders mentioned in Order 43 would be maintainable, the reverse is not true
(Gurmauj Saran Baluja v. Joyce C. Salim).3
All further appeals from appellate orders under Section 104(1) read with Order 43,
Rule 1 are expressly barred by Section 104, Sub-section (2) and Section 105 of the
Code of Civil Procedure. If any lower Appellate Court decides a miscellaneous appeal
under Order 43 Rule 1, only revision lies before High Court. There is no occasion for
the High Court to exercise second Appellate jurisdiction against Appellate Orders
passed by subordinate Courts. Second appeal lies only against Appellate decrees of
subordinate Courts as per Section 100, Code of Civil Procedure. Hence, the words
“Appellate decree or order” must mean appeal before learned single Judge of the High
Court either against Appellate decree as per Section 100, Code of Civil Procedure or
against original Order of subordinate Court under Order 43, Rule 1, Code of Civil
Procedure (Madhusudan Vegetable Products Co. Ltd.; Ahmedahad v. Rupa Chemicals
Vapi; P.S. Sathappan v. Andhra Bank Ltd.).4
Order XLIII should be read with Sections 96, 100 and 104 (1) of the Code. No appeal
lies against any Order which is not a decree unless covered under Rule 1 of this Order
(Ganga Bai v. Vijai).5 Also no appeal lies from an Order passed in exercise of the
jurisdiction of an Appellate Court under Section 104 (Shah Babu Lal v. Jayaben).6
Powers of Appellate Court under this Order are wide enough not only to set aside the
findings and orders of Trial Court but also to give its own findings. Where Order XLIII
Rule 1 permits appeal from order no petition under Article 227 of Constitution of India
can be entertained (Maneck Custodji Surjarji v. Sarafazali Nawabali Mirza).7
Where an application under Order IX is dismissed in default an application for its
restoration is maintainable under same rder read with Section 141, hence an appeal
under Clause (c) or (d) of Rule 1 of Order XLIII is not maintainable (Nathu v. Singhai).8
However, Patna High Court has expressed contrary view in Doma v. Ram Naresh
(Doma Choudhary v. Ram Naresh Lal).9 An order of dismissal in default of application
under Rule XXI Rule 90 is appealable (Bimla v. Aghore)10 under Rule 1 (j) (Madan Lal
v. Tripura Bank).11 An order of temporary injunction passed under Order XXXIX,
Rule 1 is appealable under Order XLIII, Rule 1 (A. Venkatasubbiah Naidu v. S.
Chellappan).12 Also, appeal is maintainable against interim ex parte injunction order
under clause (r) of Rule 1 (Akmal v. State; Astral Traders v. Mohd. Shaban),13 but no
appeal against injunction passed in exercise of inherent jurisdiction (M/s. Ishar Das
v. Prakash Chand).14 An order allowing review petition under Order XLVII Rule 1 is
appealable under clause (w) of Rule 1 of Order XLIII (Harendra v. Parshottama).15
®
1842
O 43, R, 1] Order 43 1843

2. Sub-rule (a)
Provisions of order 43, Rule l(a), Code of Civil Procedure, clearly provides an appeal
from an order passed under Order 7, Rule 10 (Ajmer Kaur v. Punjab State).16 Needless
to say that Rule 10 of Order 7 for the return of the plaint is an appelable Order within
the meaning of Order XLIII Rule l(a) of the Code of Civil Procedure. Thus, ordinarily
a first appeal from such Order could lie even though the order returning the plaint was
passed not by the trial Court but by the first Appellate Court. The same Clause (a)
of Rule 1 of Order XLIII however, also contains an exception laying down that where
the procedure specified in Rule 10-A of Order VII has been followed, an appeal
against the order would not lie under Order XLIII (Waqf Masjid Pindain v. Athar Husain
Haidr).17

3. Sub-rule (c)
When a suit is dismissed for default of Plaintiff’s appearance under Rule 8 of Order
9 of the Code of Civil Procedure an application for its restoration lies under Rule 9
of Order IX of the Code. The application could either be allowed or rejected (Bhagmal
v. Prabhu Ram; S. Sundaram Pillai v. V. R. Pattabiramah; State of U.P. v. III Additional
District Judge, Azamgarh).18 An appeal lies under Rule 1(c) of Order XLIII from an
order rejecting for default an application under Rule 9 of Order 9 (Narasayya v.
Thimmappa; Madan Lal Agrawalla v. Tripura Modern Bank Ltd.; Doma Choudhary v.
Ram Naresh Lal; Komalchand Beniprasad v. Pooranchand Moolchand).19 It may be
highlighted that under Order 43 Rule 1 (c) of the Code no appeal has been provided
against an order restoring the suit and allowing application under Order 9, Rule 9. For
this it is better to appreciate the elementary rule of interpretation leading to the
intendment and wisdom of Parliament in not providing the appeal against an order by
which restoration has been allowed. Different parts of the Statute including Order 9,
Rule 13, Order 9, Rule 9, Order 43, Rule 1, Section 115 of the Code have to be read
together and harmonious construction has to be made. Order 9, Rule 13 or Order 9,
Rule 9 and similarly Order 43, Rule 1 are the provisions pertaining to the procedure
and the rule of interpretation is that the procedural provision should be so construed
so as to give effect to the purpose and object of the Code or the Act The object behind
not providing appeal against an Order allowing restoration application under Order 9,
Rules 9 and 13 appears to be that once an application for restoration has been
allowed that has to be deemed to be sufficient, equitable and also that by such order
substantial justice would be done. Even though by not providing an appeal against
such orders some hardship may be caused to a party but that alone would not justify
different construction to Order 9, Rule 9 or Order 9, Rule 13 and Order 43, Rule 1 of
the Code. It is presumed in such matters that the legislature was aware of those
hardships but nevertheless deliberately the provision as it is under Order 43, Rule 1
(c) (d) of the Code was made (Bhagmal v. Prabhu Ram; S. Sundaram Pillai v. V. R.
Pattabiramah; State of U.P. v. III Additional District Judge, Azamgarh).20
Rule 9 of Order IX could not be invoked for setting aside the dismissal in default of
an application for restoration of a suit dismissed in default and that on the same
principle an order dismissing in default an application for restoration of the application
for restoration” of a suit under Order 9, Rule 9 was not open to appeal under Rule 1(c)
of Order XLII (Komalchand Beniprasad v. Pooranchand Moolchand).21 The dismissal
of such an application for default is in the exercise of the inherent powers of the Court.

®
1843
1844 Code of Civil Procedure, 1908 [O 43, R. 1

That being so, the dismissal can be set aside by the exercise of the same inherent
powers (Brijmohan v. Raghoba; Doma Choudhary v. Ram Naresh Lal; Komalchand
Beniprasad v. Pooranchand Moolchand).22

4. Sub-rule (d)
An appeal lies under Rule 1(d) of Order XLIII from an order rejecting an application
under Rule 13 of Order 9 (Narasayya v. Thimmappa; Madan Lal Agrawalla v. Tripura
Modern Bank Ltd.; Doma Choudhary v. Ram Naresh Lal; Komalchand Beniprasad v.
Pooranchand Moolchand).23 It may be noted that under Order 43 Rule 1 (d) of the Code
appeal has been provided for an order to set aside the decree passed ex parte but
no appeal has been provided against an order allowing application under Order 9, Rule
13. The object behind not providing appeal against an order allowing restoration
application under Order 9, Rule 13 appears to be that once an application for restoration
has been allowed that has to be deemed to be sufficient, equitable and also that by
such order substantial justice would be done. Even though by not providing an appeal
against such orders some hardship may be caused to a party but that alone would
not justify different construction to Order 9, Rule 9 or Order 9, Rule 13 and Order 43,
Rule 1 of the Code. It is presumed in such matters that the legislature was aware of
those hardships but nevertheless deliberately the provision as it is under Order 43,
Rule 1 (c) (d) of the Code was made (Bhagmal v. Prabhu Ram; S. Sundaram Pillai v.
V. R. Pattabiramah; State of U.P. v. III Additional District Judge, Azamgarh).24
When an application under Order 9, Rule 13 of the Code is dismissed, the Defendant
can only avail a remedy available there against, viz. to prefer an appeal in terms of
Order 43, Rule 1 of the Code. Once such an appeal is dismissed, the Appellant cannot
raise the same contention in the First Appeal. If it be held that such a contention can
be raised both in the First Appeal as also in the proceedings arising from an application
under Order 9, Rule 13, it may lead to conflict of decisions which is not contemplated
in law (Bhanu Kumar Jain v. Archana Kumar).25
A decision or direction in an interlocutory proceeding of the type provided for by Order
IX, Rule 7, is not of the kind which can operate as res judicata so as to bar the hearing
on the merits of an application under Order IX, Rule 13. The latter is a specific
statutory remedy provided by the Code for the setting aside of ex parte decrees, and
it is not without significance that under Order XLIII, Rule 1(d) an appeal lies not
against Orders setting aside a decree passed ex parte but against orders rejecting
such an application, unmistakably pointing to the policy of the Code being that
subject to securing due diligence on the part of the parties to the suit, the Code as
far as possible makes provision for decisions in suits after a hearing afforded to the
parties (Arjun Singh v. Mohindra Kumar).26

5. Sub-rule (j)
Appealable Orders are detailed in Order XLIII, Rule 1, Code of Civil Procedure,
Clause (j) thereof refers to an order under Rule 72 or Rule 92 of Order XXI setting
aside or refusing to set aside a sale. In case the words “setting aside or refusing to
set aside a sale” were not incorporated in this clause it could be said that the
impugned order, namely, mere dismissal of the application under Order XXI, Rule 90,
was not appealable though an appeal would lie against the order confirming the sale.
Similarly, if Clause (j) had been worded differently to give a right of appeal against
the order setting aside the sale or confirming it, no two opinions were possible.
®
1844
O 43, R, 1] Order 43 1845

If Rule 92 is strictly construed, it shall be deemed to contemplate an order confirming

the sale, and had the words “setting aside or refusing to set aside a sale” were not
used in Clause (j) or/of Order XLIII, Rule 1, Code of Civil Procedure, the appeal would
lie against the order confirming the sale and not an earlier order disallowing the
application under Order XXI, Rule 90, Code of Civil Procedure. When the legislature
considered it necessary to give further particulars of the appealable order covered by
Clause (j) all the words used must be given their proper meaning, and it shall have
to be held that the order contemplated by Clause (j) is one setting aside a sale as
contemplated by Sub-Rule (2) of Rule 92 of Order XXI or an order refusing to set aside
a sale as a consequence of which the sale is confirmed and the sale becomes
absolute under Sub-rule (1) (Kedar Nath v. Purushottam Das Banarsi Das).27
There is no doubt that under the Code of Civil Procedure an order setting aside or
refusing to set aside a sale in execution of a decree is appealable under Order XLIII
Rule 1 (j) (Asnew Drums Private Ltd. v. Maharashtra State Finance Corporation).28 An
appeal lies under Order 43, Rule 1 (j) from an order dismissing an application under
Order 21, Rule 90 for default of appearance of one of the parties (Smt. Bimla Devi
v. Aghore Chandra Mallick).29

6. Sub-rule (ja)
Order 43, Rule l(ja), Code of Civil Procedure provides for an appeal against an Order
rejecting an application under Sub-rule (1) of Rule 106 or Order 21 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 (Kalaparishad v. The State Bank of India).30

7. Sub-rule (k)
The question whether an appeal lies under Order 43, Rule 1 (k) from an order refusing
to set aside the abatement in an appeal, turns on the interpretation of the word “suit”
occurring in that clause. The word ‘suit’ has a narrow meaning as well as a wider
meaning. In its wider meaning, it includes an appeal also because an appeal is in a
sense, continuation of a suit. The following anomaly would result from holding that no
appeal lies from an order refusing to set aside abatement of an appeal. If the Court
refuses to set aside abatement of an appeal, no further proceedings can be taken in
that appeal and the matter cannot be raised by preferring a further appeal to the High
Court because there will be no decision on merits when once the appeal has abated
and there is nothing to be done in the further appeal (Mir Wajid Ali v. Fagoo Mandal;
Alphonso Nazareth v. Xavier Dias; Ram Kali Devi v. Ramesh Chander).31 The Karnataka
and Delhi High Court preferred to adopt the wider meaning and held the word ‘suit’ in
Clause (k) of Rule 1 of Order 43, Code of Civil Procedure, be interpreted to include an
appeal (Alphonso Nazareth v. Xavier Dias; Ram Kali Devi v. Ramesh Chander).32
An appeal is provided for in Order 43, Rule 1(k) against an Order under Rule 9 of
Order 22 refusing to set aside the abatement or dismissal of the suit will not disentitle
the appellant from challenging the order refusing to set aside the abatement in an
appeal from the decree (Balakrishna Variar v. Sheriffa).33 The reason for the same
being Rule 11 of Order 22 categorically provides that Order 22 would apply to appeal
as well. Thus when there is an appeal from an order refusing to set aside abatement
in a suit, it cannot be said on a parity of reasoning that there is no appeal from similar
order in an appeal.

®
1845
1846 Code of Civil Procedure, 1908 [O 43, R. 1

8. Sub-rule (na)
Order 43, Rule 1(na) prescribes that an order under Rule 5 of Order 33 rejecting an
application for permission to sue as an indigent person, is appealable (Kulwant Kaur
v. Balbir Singh).34

9. Sub-rule (r)
An order passed under Order 39, Rule 1, Rule 2, Rule 2A (Choorakadan alias Rayyappadan
Sanku v. Antony),35 Rule 4 or Rule 10 of the Code of Civil Procedure is an appealable
Order under order 43, Rule 1(r) (Delhi Lotteries v. Rajesh Aggarwal; Malati Santra v.
Nanda Dulal Banik; Gajraj Singh v. Ramkumar; M/s. New Kenilworth Hotel (P) Ltd. v.
Orissa State Finance Corporation).36 An order can partake either of the two characters;
taking action or refusing to take action. The language shall not be given a restricted
meaning (Inda Bewa v. Bharmananda Choudhury).37 Firstly, for the reason the language
of Rule l(r) is unhedged and broad. Secondly, Courts should lean in favour of an
interpretation which expands rather than shrinks a remedial right. A remedial provision
of law is generally construed liberally. Rule 1 (r) creates a remedial right of appeal for
protection of substantial and substantive rights (Zila Parishad, Budaun v. Brahma
Rishi Sharma).38
Rule 1 (r) of Order 43 allows an appeal both from a final order as well as interlocutory
orders (Shyam Kishore Goswami v. District Magistrate; Hamirpur; Iqbal Singh v.
Chanan Singh; Akmal AH v. State of Assam; Raja Ramakaran v. B. Ramulu; Patel
Jasmat Sangaji Padalia v. Gujarat Electricity Board, Baroda; E. Mangamma v. A.
Muniswamy Naidu; In Re : Sankar Kumar Ghosh; Sayam Ranjan Bhowmik v. Tripura
Public Service Commission; Harbans Singh v. Rajinder Rajan).39 The object of Rule
l(r) of Order 43 is to provide a remedy for improper or invalid interference with his
rights. If the right is restricted to only final orders of injunction, the object of the rule
will not be fully achieved. For instance, where a grievance of the party affected by
the ex parte interim injunction is that the Court granting it has also acted from bias
against him it is meaningless to force him to go to that very Court in the first instance.
It shall only prolong the suspension of his valuable rights. In many cases he may get
no relief in the end. Similarly, where the order of injunction is founded on an Act
challenged as unconstitutional, appeal may yield quicker relief.
As soon as an interim injunction is issued and the party affected thereby, is apprised
of it, he has two remedies– (1) he can either get the ex parte injunction order
discharged or varied or set aside under Rule 4 of Order 39 and if unsuccessful avail
the right of appeal as provided for under Order 43, Rule 1 (r), or (2) straightway file
an appeal under Order 43, Rule 1 (r) against the injunction Order passed under Rules
1 and 2 of Order 39, Code of Civil Procedure. It is not unusual to provide for alternative
remedies. For instance, when an ex parte decree is passed against a person, he has
two remedies– either he may go up in appeal against the ex parte decree or he may
seek to get the ex parte decree set aside by the same Court (Zila Parishad, Budaun
v. Brahma Rishi Sharma).40
Even when an application for temporary injunction is refused after hearing both the
parties under Rule 1 or Rule 2 of Order 39, an appeal is always available under
Order 43, Rule 1(r), whether or not the same was preceded by an ad interim Order
of injunction. Pre-trial injunction may also be a no less harsh remedy than a pre-trial
attachment and if there should be no appeal against an order refusing pre-trial attachment
®
1846
O 43, R, 1] Order 43 1847

unless the same was preceded by an ad interim attachment, then it may not be easy
to understand as to why an appeal should be available against an order refusing pre-
trial injunction, even though it was not preceded by an ad interim order of injunction.
But law is not always a devoted follower of logic (R.S. Cambray and Co. (P.) Ltd. v.
Bishnu Banerjee).41
The Orissa High Court held that when the Court is not satisfied that it should consider
the application for temporary injunction under Order 39, Rule I and 2, Code of Civil
Procedure before notice to opposite party, it does not pass an order under Order 39,
Rule 1 or 2 Code of Civil Procedure. It postpones the consideration of such application
to a later date after notice to the opposite party as envisaged under Order 39, Rule 3
proviso Code of Civil Procedure. Such order not being an order under Order 39, Rule 1
or 2 Code of Civil Procedure, right of appeal Order 43, Rule l(r) cannot be exercised
in respect of such an order (Bidulata Das v. Braja Bihari Palit).42 However, the view
of Sikkim High Court is contrary, wherein it is held when a party makes an application
for an immediate and ex parte order of injunction and the Court refuses to grant such
an injunction and instead issues notice of the application to the opposite party, the
order of refusal would be an order under Rule I or Rule 2, as the case may be and
not under Rule 3 and hence, appealable under Order 43, Rule 1 (r) (Ashok Tahering
Lema v. Tahering Wangdi).43
An interlocutory injunction is a discretionary relief and the discretion whether or not
to grant it is vested in the Judge by whom the application for injunction is heard. The
Appellate Court, is not to exercise an independent discretion of its own, it must defer
to the Judge’s exercise of his discretion and must not interfere with it merely upon
the ground that the member of the Appellate Court would have exercised the discretion
differently (Hadmor Productions Ltd. v. Hamilton; Laxmi Khadi Bhandar v. Agricultural
Development Branch).44
Every argument including the balance of convenience would seem to fall in favour of
maintaining the same status quo until determination of the action, which is the normal
purpose for which interlocutory injunctions are granted (Garden Cottage Foods Ltd.
v. Milk Marketing Board; Laxmi Khadi Bhandar v. Agricultural Development Branch).45

10. Sub-rule (s)

An appeal lies under Order XLIII, Rule 1(s) from an Order passed under Order 40,
Rule 1 (Nagina Singh v. Most. Sheojoti Kuer)46 and it is irrelevant to go into the
question whether it is an incomplete order or interlocutory order or a final order.
Security has to be furnished after an Order appointing a person as a receiver has
been made under Rule 1, this is made clear by Rule 3 which lays down that “every
receiver so appointed shall (a) furnish such a security” etc. It cannot be doubted for
a moment that furnishing security has to follow the appointment of a person as a
receiver and a person is appointed as a receiver when an order under Rule 1 is made.
An appeal lies from an order made under Rule 1 and, therefore, as soon as an order
under Rule 1 is made, an appeal can be filed from it even though the receiver has
not furnished security. An appeal is provided by Order 43, Rule l(s) from and “Order”
made under Rule 1 of Order 40 that is from the Order or direction appointing a certain
person as a receiver and not from the finding that it is just and convenient to appoint
a receiver or creating an office of receiver (Sunni Central Waqf Board v. Sirajul Haq;
Ram Babu Verma v. Om Prakash Verma).47

®
1847
1848 Code of Civil Procedure, 1908 [O 43, R. 1

11. Sub-rule (u)

Clause (u) of Rule 1 of Order 43 of the Code says that an appeal shall lie from an
order under Rule 23 or 23A of Order 41 of the Code remanding a case, where an
appeal would lie from the decree of the Appellate Court (Sm. Santoshini Bose-Trustee
v. Shib Sankar Das).48 It is obvious from the Rule 1 (u) that an appeal will lie from
an order of remand only in those cases in which an appeal would lie against the
decree if the Appellate Court instead of making an order of remand had passed a
decree on the strength of the adjudication on which the order of remand was passed.
The test is whether in the circumstances an appeal would lie if the order of remand
where it is to be treated as a decree and not a mere order. In these circumstances,
it is quite safe to adopt that appeal under Order 43 Rule (1) Clause (u) should be heard
only on the ground enumerated in Section 100 (Narayanan v. Kumaran).49
An order rejecting the memorandum of appeal following the rejection of an application
under Section 5 of the Limitation Act for condonation of the delay in filing the appeal
is not a decree but incidental to an order against which an application in revision under
Section 115 of the Code may lie but no appeal under Order 43 Rule 1 of the Code
will be maintainable. If the application under Section 5 is rejected, the order rejecting
the said application cannot be a decree and, thus, the order rejecting the memorandum
of appeal would merely be an incidental order (Mamuda Khateen v. Beniyan Bibi; Bhag
Mal v. Munshi).50

12. Letters Patent

A further second appeal lying to a Division Bench from an Appellate Order of the trial
Judge passed under Order 43, Rule 1 is wholly foreign to the scope and spirit of the
Letters Patent (Shah Babulal Khimji v. Jayaben D. Kania; Chhunilal Laxman Prasad
v. Agrawal & Co.; B.S. Adityan v. Fencing Association of India; Jabalpur l;Gurmauj
Saran Baluja v. Joyce C. Salim; P.S. Sathappan v. Andhra Bank Ltd.; Liverpool and
London S.P. and I Asson. Ltd. v. M. v. Sea Success I; Mithailal Dalsangar Singh v.
Annabai Devram Kini; Subal Paul v. Malina Paul; M/s. New Kenilworth Hotel (P) Ltd.
v. Orissa State Finance Corporation).51 Frankly speaking, no appeal would lie under
Letters Patent against a decision rendered by the High Court in an appeal from order
under Order 43, Rule 1 of the Code (Madan Naik v. Mst. Hansubala Devi; B.S. Adityan
v. Fencing Association of India, Jabalpur).52 Thus, no Letters Patent Appeal would lie
against the Orders passed in appeals disposed of by a learned Single Judge of the
High Court in appeals preferred thereto under Order XLIII Rule 1 read with Section
104 of the Code against the order passed by the subordinate Court or district Courts.
To put it pithily, if there is a conflict between an appeal under the Code and the Letters
Patent both the provisions have to be read harmoniously so as to save an appeal
which is not otherwise provided for. By way of example it may be noticed that when
an appeal is maintainable under the Letters Patent by reason of its being a ‘Judgment’
within the meaning of Letters Patent such an appeal would be maintainable despite
the fact that no provision therefore has been made in Section 104 thereof. In a case,
however, where an appeal may be maintainable both under Sub-section (1) of Section 104
as also the Letters Patent a difficulty may arise to the extent that where the orders
sought to be appealed against is not a “Judgment” whether Order XLIII Rule 1 would
come into play. But if both the provisions are read together, it may be held that
Order XLIII, Rule 1 provides for an additional right. So construed, a harmonious

®
1848
O 43, R, 1A] Order 43 1849

meaning can be attributed both to Section 104 of the Code and to Letters Patent but
we have no doubt in our mind that if a right of appeal is availed under Sub-section
(1) of Section 104 of the Code, no further appeal would be maintainable (P.S. Sathappan
v. Andhra Bank Ltd.).53
The term “Judgment” occurring in Clause 15 of the Letters Patent will take into its fold
not only the Judgments as defined in Section 2(9), Code of Civil Procedure and orders
enumerated in Order 43, Rule 1 of Code of Civil Procedure, but also other orders
which, though may not finally and conclusively determine the rights of parties with
regard to all or any matters in controversy, may have finality in regard to some
collateral matter, which will affect the vital and valuable rights and obligations of the
parties. Interlocutory orders which fall under Categories (i) to (iii) above, are, therefore,
“Judgments” for the purpose of filing appeals under the Letters Patent (Midnapore
Peoples’ Co-op. Bank Ltd. v. Chunilal Nanda).54

1A. Right to challenge non-appealable Orders in appeal against

decree.—
(1) Where any order is made under this 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.
(2) 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.

ANNOTATIONS

Amendment Effective Date of Amendment

The Code of Civil Procedure Amendment The Code of Civil Procedure (Amendment)
Act, 1976 inserted Rule 1A. Act, 1976 wef. 01.02.1977

Case Cited
1. Lagandeo Singh v. Satyadeo Singh MANU/BH/0030/1992: AIR 1992 Pat 153.
2. Banwari Lal v. Smt. Chando Devi MANU/SC/0152/1993: AIR 1993 SC 1139; Ghaziabad
Development Authority v. Anoop Singh MANU/SC/0041/2003: AIR 2003 SC 1004.

COMMENT
The amending Act of 1976 Clause (m) of Order XLIII (1) providing appeal against an
order recording or refusing to record an agreement, compromise or satisfaction has
been deleted and Order XLIII Rule 1-A, Sub-rule (2) has been inserted 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 contest the
decree on the ground that the compromise should or should not have been recorded.
The reason for deleting Clause (m) and inserting Sub-rule (2) in Order XLIII Rule 1-
®
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1850 Code of Civil Procedure, 1908 [O 43, R. 1A

A is obviously to shorten the litigation as a matter of fact, the appeal against decree
which has been passed disposing of the suit in terms, of the compromise does not
lie under Sub-rule (2) of Order XLIII Rule 1-A as the same is not an enabling provision.
It appears that since an appeal was provided under Clause (m) of Order XLIII (1) of
the Code against an order recording or refusing to record compromise, agreement or
satisfaction and litigation used to linger by preferring appeal which remained pending
for years together, and further progress of the suit was being delayed, the legislature
thought it proper to curtail right of appeal against an order recording or refusing to
record compromise, agreement or satisfaction at the interlocutory stage of the suit.
By introducing provisions of Order XLIII Rule 1-A Sub-rule (2), it has been provided
that compromise decree can be attacked on the ground that compromise should or
should not have been recorded, meaning thereby that correctness of the order recording
or refusing to record a compromise after rejecting or allowing objection to the recording
of compromise, as the case may be, can be examined by Appellate Court in appeal
against the decree. The provision of Order XLIII Rule 1-A is somewhat similar to
Section 105 of the Code which lays down that 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. The legislature only
wanted to curtail right of appeal against the order recording or refusing to record a
compromise so that correctness of the order may be challenged in appeal against the
decree and the proceeding may not be delayed by taking the matter to the Appellate
Court against such an order (Lagandeo Singh v. Satyadeo Singh).1
The language of the Sub-rule (2) is very clear where it has been stated that in appeal
against the decree passed in a suit after recording a compromise or refusing to record
a compromise, it will be open to contest the decree on the ground that compromise
should or should not have been recorded. In such an eventuality, appeal has been
provided under Section 96(1) itself in view of the fact that bar put by Sub-section (3)
thereof, will not operate and Sub-rule (2) aforesaid only makes it explicit that in that
appeal, decree can be contested on the ground that compromise should or should not
have been recorded.
When Section 96(3) bars an appeal against decree passed with the consent of parties,
it implies that such decree is valid and binding on the parties unless set aside by the
procedure prescribed or available to the parties. One such remedy available was by
filing the appeal under Order 43, Rule 1(m). If the order recording the compromise was
set aside, there was no necessity or occasion to file an appeal against the decree.
Similarly, a suit used to be filed for setting aside such decree on the ground that the
decree is based on an invalid and illegal compromise not binding on the Plaintiff of the
second suit. But after the amendments which have been introduced, neither an appeal
against the order recording the compromise nor remedy by way of filing a suit is
available in cases covered by Rule 3A of Order 23. As such a right has been given
under Rule 1A(2) of Order 43 to a party, who challenges the recording of the compromise,
to question the validity thereof, while prefering an appeal against the decree. Section 96(3)
of the Code shall not be a bar to such an appeal because Section 96(3) is applicable
to cases where the factum of compromise or agreement is not in dispute.
Even Rule 1(m) of Order 43 has been deleted under which an appeal was maintainable
against an Order recording a compromise. As such a party challenging a compromise
can file a petition under proviso to Rule 3 of Order 23, or an appeal under Section
®
1850
O 43, R, 2] Order 43 1851

96(1) of the Code, in which he can now question the validity of the compromise in
view of Rule 1A of Order 43 of the Code (Banwari Lal v. Smt. Chando Devi ; Ghaziabad
Development Authority v. Anoop Singh).2

2. Procedure.—
The rules of Order XLI shall apply, so far as may be, to appeals from Orders.

ANNOTATIONS

High Court Amendments [Vide Notification No. ROC 2296/59, dated

Allahabad
In Order XLIII, in Rule 2, after the words
and figures “Order XL1”, insert the words
and figures “and Order XLIA”.
[Vide Notification No. 14186/VII-d-147,
dated 22nd December, 1951.]
Andhra Pradesh
Same as in Madras
Karnataka
In Order XLIII, for Rule 2, substitute the
following Rules, namely:
“2. The Rules contained in Orders XLI
and XLIA shall apply, so far as may
be, to appeals from the orders specified
in Rule 1 and other orders of any
subordinate Court from which an
appeal to the High Court is allowed
under the provisions of any law:
Provided that in the case of appeals
against interlocutory orders made prior
to decree or final order, the Court which
passed the order appealed from need
not send the records of the case unless
an order has been made by the High
Court for stay of further proceedings
in that Court but send only such records
as may be called by the High Court.
3. Rules contained in Order XLII shall
apply, so far as may be, to appeals
from appellate Orders.”
5th Novembrer, 1959.]
Kerala
In Order XLIII, for Rule 2, substitute the
following Rule, namely:
“2. The Rules of Order XLI, Order XLIA
and Order XLII, Rule 2(2) shall apply,
so far as may be, to appeals from the
Orders specified in Rule I and other
orders of any Civil Court from which
an appeal to the High Court is allowed
under any provision of law:
Provided that in the case of appeals
against interlocutory orders made prior
to decree, the Court which passed
the order appealed from shall not send
the records of the case unless an
order has been made for stay of further
proceedings in that Court.” (w.e.f.
09.06.1959)
Madras
In Order XLIII, for Rule 2:
(a) substitute the following Rule,
namely:
“2. The Rules of Order XLI and
of Order XLIA shall apply, so
far as may be, to appeals from
the orders specified in Rule 1
and other orders of any Civil
Court from which an appeal to
the High Court is allowed under
any provision of law:

®
1851
1852 Code of Civil Procedure, 1908 [O 44, R. 1

Provided that in the case of a printed a typewritten copy of such

appeals against interlocutory
orders made prior to decree,
the Court which passed the
order appealed from shall not
send the records of the case
unless an order has been made
for stay of further proceedings
in that Court.”
(b) after Rule 2, insert the following
Rule, namely:
“3. Appeals from Appellate
Orders: (1) The provisions of
Order XLII shall apply, so far
as may be, to appeals from
appellate orders.
(2) A memorandum of appeal from an
appellate order shall be accompanied
by a certified copy of the judgment
and of the order of the Court of first
instance, and by a certified copy of
the judgment and of the order of the
Appellate Court.
(3) If any ground of appeal is based
upon the construction of a document,
document shall be presented with the
memorandum of appeal:
Provided that, if such document
is not in the English language
and the appellant appears by
a pleader, an English translation
of the document certified by
the pleader to be a correct
translation shall be presented.”
[Vide P Dis. No. 788 of 1932.]
Punjab, Haryana and Chandigarh
In Order XLIII, for Rule 2, substitute the
following Rule, namely:
“2. The Rules of Order 41 shall apply,
so far as may be, to appeals from
order:
Provided that in case of appeals against
interlocutory orders, the Court which
passed the order appealed from shall
not sent the records of the case unless
summoned by the Appellate Court.”
(w.e.f. 28.01.1993)

Order XLIV
Appeals by Indigent Persons

1. Who may appeal [as an indigent person].—

1
[(1)] Any person entitled to prefer an appeal, who is unable to pay the fee
required for the memorandum of appeal, may present an application,
accompanied by a memorandum of appeal, and may be allowed to appeal
as an [indigent person], subject, in all matters, including the presentation
of such application, to the provisions relating to suit by an [indigent person]
in so far as those provisions are applicable.
2
[* * *]

ANNOTATIONS

Amendments indigent person” for the text “as Pauper” in

The Code of Civil Procedure Amendment the marginal heading of Rule 1. The
Act, 1976 substituted the text “as an Amendment Act further substituted the

®
1852