What are the appealable orders?

Question: What are the appealable orders? [BIHAR APO 2014]

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Answer

Sections 104 to 108 read with Order 43 deal with appeals from orders.

Orders from which appeal lies

As per Section 104, an appeal shall lie from the following orders

1. An order under Section 35-A;
2. An order under Section 91 or 92 refusing leave to institute a suit of the nature referred to leave in Section 91 or Section 92 as the case may be,
3. An order under Section 95;
4. 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 the execution of a decree.
5. Any order made under rules from which an appeal is expressly allowed by rules.

As per Rule 1 of Order 43 appeal shall lie from the following orders under the provisions of Section 104, namely

1. Any order under Rule 10 of Order VII returning a plaint to be presented to the proper Court; except where the procedure specified to Rule 10-A of Order VIII has been followed;
2. 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;
3. An order under Rule 13 of Order XIII rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte;
4. An order under Rule 21 of Order XI;
5. An order under Rule 34 of Order XXI on an objection to the draft of a document or of an endorsement;
6. An order under Rule 72 or Rule 92 of Order XXI setting aside or refusing to set aside a sale;
7. An order rejecting an application made under Sub-rule (1) of Rule 106 of Order XXI provided that 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;
8. An order under Rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit;
9. An order under Rule 10 of Order XXII giving or refusing to give leave;
10. 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;
11. An order under Rule 5 or Rule 7 of Order XXXIII rejecting an application for permission to sue as an indigent person;
12. Order in interpleader suit under Rule 3, Rule 4 or Rule 6 of Order XXXV;
13. An order under Rule 2, Rule 3 of Rule 6 of Order XXXVII, the question was whether a composite order under Rule 38, Rule 5 rejecting security and making conditioned order of attachment before final judgment and it can be converted into remission. It was held that the appeal cannot be converted into an application of remission, there being no vested right of appeal;
14. An order under Rule 1, Rule 2-A, Rule 4, or Rule 10 of Order XXXIX. It is clear that under Order XLIII, Rule 1 (v) the right of appeal given to the affected party is not only against the final order of injunction passed by the lower Court after hearing both the parties under Rule 4 Order XXXIX but also against an ex-parte order of injunction passed by the lower Court under Order XXXIX, Rule 1 without hearing the affected party normal judicial machinery for correction of ex parte orders is the original Court itself. But under Order XLIII, Rule 1 (v) the injuncted party can go to an Appellate court against an ex parte order even without first going before the original, so long as the statute has not willed the Court should give effect to the expression of the legislative will particularly in the case of remedy by way of an appeal.
15. An order under Rule 1 or Rule 4 of Order XI;
16. An order or refusal under Rule 23-A of Order XLI;
17. 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,
18. An order under Rule 4 of Order XLVII granting an application for review.

Bar of appeal from an order passed in appeal- No appeal shall lie from any order passed in an appeal from any order. Section. 104 (2). When a single Judge of a High Court hears an appeal in the exercise of his jurisdiction as an Appellate Court under Section 104 (1), C.P.C. no further appeal is maintainable by virtue of Section 104 (2) Hemlata Pande v. Sukan Dibya,[(2000) 2 SCC 218].

“Other orders“.-As per Section 105 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.

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