Under which Sections of C.P.C. are civil first appeals, civil second appeals and civil miscellaneous appeals filed?

Question: Under which Sections of C.P.C. are civil first appeals, civil second appeals, and civil miscellaneous appeals filed? [Jharkhand J.S. 2001]

Find the answer to the mains question only on Legal Bites. [Under which Sections of C.P.C. are civil first appeals, civil second appeals, and civil miscellaneous appeals filed?]

Answer

The civil first appeal is filed under Section 96 of the Code of Civil Procedure, 1908

“Appeal from original decree.

1. Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorized to hear appeals from the decisions of such Court.
2. An appeal may lie from an original decree passed ex parte.
3. No appeal shall lie from a decree passed by the Court with the consent of parties.
4. No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject matter of the original suit does not exceed ten thousand rupees.”

The civil second appeal is filed under Section 100 of the Code of Civil Procedure, 1908

“100. Second appeal

1. Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.
2. An appeal may lie under this section from an appellate decree passed ex parte.
3. In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.
4. Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.
5. The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such a quest.

Provided that nothing in this subsection shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it if it is satisfied that the case involves such question.”

It is notable that Section 104 and Order 43 deal with ‘Appeal against orders’ but in practice appeals against orders are filed under the heading ‘Miscellaneous Appeal’. Therefore, miscellaneous appeals are filed under Section 104 and Order 43.

104. 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

(ff) an order under section 35A;

(ffa) an order under section 91 or section 92 refusing leave to institute a suit of the nature referred to in section 91 or section 92, as the case may be;

(g) an order under section 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 the 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 a less amount, ought to have been made.

(2) No appeal shall lie from any order passed in appeal under this section.

According to Order 43 following are some important orders which are appellable –

(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 13 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;

(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) of rule 106 of Order XXI, provided that order on the original application, that is to say, the application referred to in sub-rule (l) 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 XXVIII;

(r) an order under rule 1, rule 2, 1 [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 rehear, an appeal;

(u) an order under rule 23 1 [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.

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